German Courts Weigh Legal Responsibility for U.S. Drone Strikes

On March 13 and 14, a German court considered two challenges to the U.S. drone program in the Middle East and East Africa. Both cases, brought before the Higher Administrative Court of North Rhine-Westphalia in Münster, assert that Germany bears legal responsibility for the consequences of U.S.-led drone strikes in Yemen and Somalia that were conducted from the U.S. Air Force’s Ramstein base, located in southwestern Germany.

The court in the Yemeni case found on March 19 that Germany is responsible for ensuring that U.S. operations conducted from German territory comport with international law. However, on the same day, the court also held that a lower court had correctly deemed the Somali case inadmissible, on the grounds that it could not be proved that the plaintiff’s father was killed by a U.S. drone strike on the day in question. Additionally, the court stated that it could not be proved that the German government had knowledge of the use of Ramstein for drone strikes in 2012.

Background

Under its NATO Status of Forces Agreement (NATO SOFA), the U.S. may operate on German territory so long as U.S. activities comport with German law. These cases argue that the continued use of the Ramstein base for drone strikes violates the NATO SOFA and the German constitution. Though the German government has claimed that it had no knowledge that the Ramstein base contained a U.S. drone control center, the cases in question argue that Germany shares clear responsibility for its failure to ensure that German law is respected in Ramstein.

In particular, the complainants assert that U.S. drone strikes in the Middle East and East Africa would be impossible without Ramstein. According to leaked classified documents published by The Intercept, while drone pilots are based in the United States, data is routed from the U.S. to Ramstein via fiber optic cables; the data is then rerouted from Ramstein to satellites and on to the drones. Similarly, data from the drones, including surveillance photos, is transmitted back to drone operators through Ramstein. The base also hosts one of five global data centers, in which data is collected and disseminated to drone operators. The complainants argue that permitting Ramstein’s use as a satellite relay station and data collection center for the purpose of drone strikes constitutes a violation of Germany’s constitutional obligation to protect the right to life, as well as similar obligations under international law.

The right to life is protected under Article 2(2) of Germany’s Basic Law (the Grundgesetz, or Germany’s constitution). This right has been interpreted expansively by Germany’s supreme constitutional court, the Federal Constitutional Court (the Bundesverfassungsgericht), extending to all individuals (regardless of their German nationality) and read to apply extraterritorially. In its post-9/11 jurisprudence, the court has also made clear that only significant security (and legally prescribed) interests may be invoked to outweigh individual fundamental liberty interests, including the right to life.

In addition to German constitutional obligations, Germany is bound by its International Covenant on Civil and Political Rights (ICCPR) and European Convention on Human Rights (ECHR) obligations, and principles of international humanitarian law (IHL). Article 25 of the Basic Law clearly states that “general rules of international law shall be an integral part of federal law.” As such, breaches of the international obligation to protect the right to life may be addressed by German courts in the context of constitutional law.

The German government has argued that it is under no legal obligation to rein in U.S. military activities conducted from German territory, particularly under the NATO SOFA. It has also relied on U.S. assurances that it is not conducting any military activities that do not conform to international law. Further, the government argues that it has significant discretion in matters of national security and defense.

The Cases

The German judicial system is subdivided into two forms of courts: ordinary courts, which hear criminal and civil cases, and specialized courts, including courts that hear administrative complaints against the government. German administrative law establishes the rights and obligations of German citizens against the government and any public authorities. Administrative complaints may be appealed up to the Federal Administrative Court, one of five federal supreme courts in Germany. Any cases that raise questions of basic law may be heard in front of Germany’s Federal Constitutional Court. The two challenges to the operation of the U.S. drone program at Ramstein were filed as administrative complaints.

Drone Strikes in Somalia (Somali plaintiff v. Federal Republic of Germany)

In 2015, the son of a Somali herdsman killed by a U.S. drone strike in February 2012 filed an administrative complaint in Germany on behalf of his deceased father and British-born Mohamed Sakr, who was also killed in the strike and was suspected of membership in al-Shabaab. In 2016, the Cologne Administrative Court ruled that the case was inadmissible due to insufficient links between the German government’s activities—or lack thereof—and the complainant’s constitutional right to life.

A criminal complaint against German officials was also filed in Zweibrücken, asserting that German officials at Ramstein and AFRICOM (the U.S. military’s combatant command for African operations) were responsible for the men’s deaths. AFRICOM is located in Stuttgart, Germany, and Zweibrücken is a town close to Ramstein; accordingly, prosecutors in both localities had the jurisdiction to investigate the case. However, in May 2017, the Stuttgart prosecutor’s office declined to investigate the role of AFRICOM in the drone strike. Similarly, in June 2017, the Zweibrücken prosecutor declined to investigate the U.S. base at Ramstein.

In both cases, German prosecutors argued that the U.S. is responsible for prosecuting its personnel under the NATO Status of Forces Agreement—which stipulates that the U.S., as the sending state, has the right to exercise exclusive criminal jurisdiction over its military personnel, though German law continues to apply. While Germany, under its supplemental agreement with the U.S., may recall its waiver of criminal jurisdiction in particular cases, this rarely occurs and is generally reserved for cases in which foreign service members committed crimes off the relevant U.S. military base. Further, and outside of jurisdictional questions, prosecutors argued that Germany is not obligated to prevent criminal attacks from occurring under the authority of other states operating from within German territory.

Drone Strikes in Yemen (Faisal bin Ali Jaber et al v. Federal Republic of Germany)

The year before, in October 2014, three survivors of an August 2012 U.S. drone strike in Yemen had also initiated an administrative complaint against the German government at the Cologne Administrative Court. Because the case was brought against the German Defense Ministry (as the representative of the German government), which is located in Bonn, the Cologne Administrative Court had initial jurisdiction over the complaint. Though the three complainants survived the drone strike, other guests at the wedding targeted in the strike were killed, including two of the complainants’ relatives. The plaintiffs sought to compel the German government to bar Ramstein from being used to conduct drone strikes in the future.

While the case was deemed admissible in May 2015, the Cologne Administrative Court held that Germany was not obligated to prevent the U.S. from using Ramstein to conduct drone strikes. In particular, the court agreed that the protections of the German constitutional right extend to foreigners where threats to life emanate from German territory. Despite agreeing with the plaintiffs’ right to life claim, however, the Court showed significant deference to the government’s security and defense authority, and found that under the NATO SOFA Germany has no obligation to constrain the actions of foreign troops operating in German territory.

Further, the court held that an assessment of the status of the conflict in Yemen was necessary to determine the nature and extent of IHL protections for civilians, which differ in international armed conflicts (IACs) and noninternational armed conflicts (NIACs). As the court stated, the status of the conflict would in turn inform any analysis of the legality of the U.S.’s use of force in Yemen and its targeting practices. While the court found that the status of the conflict in Yemen rises to the level of a NIAC, it also stated that the German government cannot practically examine the U.S. drone program on a case-by-case basis, and that the German government had received assurances from the U.S. government that its targeting practices complied with international law.

The Appeals Process

The Somali Herdsman

Appeals proceedings for both cases began in mid-March 2019. On March 13, the Higher Administrative Court of North Rhine-Westphalia in Münster heard opening arguments from the Somali herdsman’s lawyers. On March 19, the Higher Administrative Court upheld the lower court’s dismissal of the case. The court’s determination lay in large part with evidentiary challenges. In particular, the court stated that the plaintiff had not sufficiently proved that his father had been killed by an American drone on Feb. 24, 2012. Though a German journalist and American lawyer testified in the proceedings on behalf of the plaintiff, the court stated that the plaintiff’s account differed significantly from press coverage immediately after the incident (which did not note civilian casualties).

Additionally, the Higher Administrative Court found that the plaintiffs had not sufficiently demonstrated that, at the time of the drone strike in question, Germany had knowledge of the use of Ramstein as a satellite relay station for the purpose of drone strikes in Somalia. The court noted that the U.S. had informed German authorities in April 2010 and November 2011 of its intention to build a relay station, and that the German Defense Ministry had established this with the U.S. armed forces in mid-December 2011. Given this timeline, the court found that Germany could not have been reasonably expected to anticipate that the relay station would be operational by February 2012, and that the German government was fully informed about the U.S. drone strikes scheme only through the course of this judicial proceeding. Further, the court also noted that German media did not report on Ramstein’s role in drone strikes until September 2012, based on the revelations of a former American drone pilot, and that U.S. President Barack Obama did not confirm the use of armed drone strikes in Somalia until May 2013.

On the basis of these facts, the court upheld the case’s dismissal. The plaintiffs now have the option of appealing to the Federal Administrative Court.

The Yemeni Case

The following day, March 14, the same court heard the first arguments from lawyers representing the Yemeni plaintiffs. The Defense Ministry again stated that it had no knowledge of Ramstein’s role in the U.S. drone strikes program, citing that no drones are launched or flown from Germany. Presiding Judge Wolf Sarnighausen acknowledged that the case involves complicated issues of domestic and international law, and raises novel issues of law before the Federal Administrative Court.

On March 19, the Higher Administrative Court found in partial favor of the Yemeni complainants. Most significantly, the court found that, per the Basic Law, Germany has the obligation to conduct a comprehensive investigation of any alleged breaches of the fundamental right to life, including when such breaches are conducted by other states, where there is a sufficiently close relationship to the German government. The court emphasized that the German government cannot continue to rely on assurances that the U.S. drone strikes program complies with international law. However, the court rejected the claim that Germany should forbid the use of Ramstein for continued U.S. military operations—rather, any investigation conducted by Germany must be focused on ensuring that any drone strikes (or other military operations) conducted via Ramstein are carried out in accordance with the applicable international law.

Before analyzing the plaintiff’s claim under international law, the court established as a matter of fact that Ramstein plays a critical role in the U.S. drone program. Further, the court established that Germany knew, as of at least 2016, that Ramstein was used as a satellite relay station for drone strikes, though American documents demonstrated that the use of Ramstein for drone strikes was highlighted and communicated to German authorities in 2010 and 2011. (The court in the Somali case similarly cited these data points; in that case, however, the court’s analysis and dismissal of the case hinged primarily on an evidentiary question of whether the plaintiff’s father was as a matter of fact killed by a U.S. drone strike).

International Law Analysis

The bulk of the oral judgment is focused on determining and applying the applicable legal framework for analyzing the U.S. drone strikes program in Yemen. In particular, the court’s assessment addressed three primary questions; (1) the jus ad bellum question of whether the U.S. use of force against al-Qaeda in Yemen is permissible under IHL; (2) the status of the conflict in Yemen, to determine the level of protection afforded to civilians under the applicable IHL principles; and (3) the legality of U.S. activities in Yemen based on the former two considerations.

First, the court reiterated that the use of military force is permissible only as provided for under international law, including in the fight against international terrorism. The court noted that the U.S. has engaged in the use of force in Yemen with the consent of the legitimate Yemeni government (and the U.N. Security Council), and thus U.S. military activities in Yemen comply with jus ad bellum requirements. As such, the use of armed drones and other weaponry in Yemen is not itself prohibited. Still, as the court states, the mere fact that drone missions are in principle permissible does not necessarily render them legal under IHL and international human rights law.

Having found that the U.S. may properly exert military force in Yemen as a party to an armed conflict, the court then addressed the question of the status of the conflict in Yemen. The court cited the International Criminal Tribunal for the former Yugoslavia’s (ICTY) definition of an armed conflict—“resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups, or between such groups within a State”—to support its conclusion that the conflict in Yemen rises to the level of a NIAC between al-Qaeda in the Arabian Peninsula (AQAP) and the Yemeni government (and its ally, the United States). The court also passingly referred to a concurrent NIAC between the Islamic State, on one side, and Yemen and the United States, on the other.

Per Article 3 of the Fourth Geneva Convention, which stipulates the level of protection afforded to civilians in NIACs, civilians may be attacked only if they are direct participants in hostilities (and thus considered combatants). Further, the court noted that attacks in NIACs that are likely to cause loss of civilian life out of proportion to the expected, concrete and immediate military advantage are prohibited. Recognizing the difficulty in distinguishing civilians from combatants in NIACs, the court pointed to the ICRC’s “continuous combat function” guidance, which suggests that those individuals who are continually involved in “the preparation, execution, or command of acts or operations amounting to direct participation in hostilities” ought to be considered combatants for the purposes of IHL.

After establishing the existence of a NIAC in Yemen and the relevant IHL standards for protected civilians in such conflicts, the court addressed two long-standing U.S. positions on armed conflict that bear on its targeting practices. First, the court is clear in its rejection of the U.S.’s assertion that the “war on terror” constitutes a global war under IHL. In particular, the court stated that this concept of armed conflict is inconsistent with IHL because it allows for nearly limitless application of military law and does not differentiate between spatially constrained armed conflicts. However, the court acknowledged that, at least regarding the armed conflict in question, the U.S. has concentrated its military operations in areas with regional armed conflicts.

Second, the court discussed the U.S.’s interpretation of its right to self-defense and, in particular, its stated right to “preventative” self-defense in situations in which both the time and location of an enemy attack are unknown or give rise to uncertainty. The court was unequivocal in its statement that this interpretation of the right to self-defense is widely contested and therefore not accepted as a principle of customary international law.

Taken together, the court noted that these two strands of critique give rise to doubts about whether the U.S. adheres to the principle of distinction in Yemen—in other words, whether the U.S.’s formulation of armed conflict permits the liberal targeting of individuals who would otherwise not be legitimate targets under IHL. The court cited information finding that individuals affiliated with AQAP and the Islamic State, including civilians or former combatants, have been targeted by the United States, in violation of IHL. The court specifically noted that former fighters, including individuals subject to U.N. sanctioning regimes, are not legitimate military objectives, though they may be held criminally accountable for providing nonmilitary support.

Lastly, in a continuation of its discussion of targeting practices, the court addressed the ICCPR Article 6 prohibition against the arbitrary deprivation of life. The court noted that ICCPR obligations extend to armed conflict; however, it also recognized that such obligations are qualified in armed conflict to the extent that killing is permissible when an individual is a legitimate military target, and where disproportionate force has not been used. The court then cited ECHR and German Federal Constitutional Court jurisprudence establishing that an effective official investigation must be conducted when arbitrary killings in the context of armed conflict occur. The court acknowledged that, according to the 2014 report by the U.N. special rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, the majority of individuals killed by U.S. drone strikes in Yemen were legitimate military targets. However, the court also noted that the special rapporteur enumerated a series of armed attacks in Yemen in which there remains a suspicion of illegality and news reports finding that the U.S. has targeted individuals with no connections to AQAP.

In closing, the court stated that there is no information as to whether the U.S. has conducted independent investigations into its drone strikes. Further, the court found that applicants have been routinely denied judicial review of the U.S. drone strikes in U.S. courts. As such, in the absence of effective review procedures, the court found that Germany is required to conduct an effective investigation into its role in potential U.S. IHL violations.

Notably, the court did not address the German government’s NATO Status of Forces Agreement argument. Similarly, the court did not take up the lower court’s discussion of the German government’s security and defense authority.

What Next?

Once the written judgments are sent to the parties in both cases, they may consider an appeal to the Federal Administrative Court in Leipzig. If parties choose not to appeal, the decisions of the Higher Administrative Court become final. An appeal to the Federal Constitutional Court, as a court of last resort, is also available in both cases.

Following the Higher Administrative Court’s ruling in the Yemeni case that there are reasonable grounds for finding that U.S. drone strikes violate the principle of distinction, prohibition of arbitrary killings and lack of effective official investigations, the German government is now obligated to conduct an impartial review of its involvement in the U.S. drone strike program and the U.S. legal position. The court was not prescriptive regarding the form such an inquiry might take, beyond requiring that Germany takes “appropriate measures” in conducting an investigation.

In response, the German Foreign Ministry stated that the “German government is in regular and confidential contact with the United States about the role the U.S. air base Ramstein plays in the U.S.’s international deployment of unmanned aircrafts.” For its part, the U.S. noted that it “does not launch or operate remotely piloted aircraft from Germany” and that it “value[s] its longstanding and close relationship with Germany and remain[s] in close dialogue with our German counterparts on all matters related to our bases [in Germany] and our mutual efforts to support German and European security.” The U.S. has not publicly engaged on the substance of the Higher Administrative Court’s discussion of U.S. international law violations regarding its drone program.

Meanwhile, the German cases may be only the beginning of this litigation strategy for plaintiffs seeking to challenge the U.S. drone program. Human rights organizations have expressed hope that the Yemeni decision may prompt similar litigation in the U.K., Italy, and the Netherlands—all of which provide support to the U.S. drone program by sharing intelligence or allowing the operation of bases. What ultimate effect such cases will have on the operation of the drone program is an open question.