Germany’s Highest-Ranking Prosecutor on the Legality of Drone Strikes – and Much More

In a must-read decision, the Federal Prosecutor General in Germany (the equivalent of the U.S. Attorney General) examines in great depth the legality of a drone strike that killed a German citizen and four others in northwest Pakistan in October 2010. The 40-page analysis—issued last year but just recently translated into English—lays out the Prosecutor General’s conclusion that there was no violation of either international or German law, and therefore no basis for going forward with the case against those responsible (“persons unknown”) for the German national’s death. In reaching this conclusion, the decision offers a window into the German Justice Ministry’s thinking on a number of key issues, including the role and status of the CIA officers that were presumptively operating the drones, the nature of the overlapping conflicts that were underway, and the territorial limitations of the conflict. Of note, the Federal Prosecutor also uses this opportunity to offer a strong critique of the U.S. government’s theory that it is in a global conflict with al Qaeda.

The following highlights eight notable aspects of the decision (not in order of importance). Interestingly, the decision involves the same incident that reportedly led Germany to restrict information sharing with U.S. intelligence, given concerns that shared intelligence might be used as a basis for carrying out drone attacks.

#1. Broad-Based Jurisdiction. The fact that the case involved alleged war crimes against a German national was, according to the Prosecutor General’s read of the applicable statutes, enough to give the court jurisdiction, even though the case involved a U.S. drone strike far from German soil. (This is based in part on a theory of universal jurisdiction and in part on what is known as the “passive personality principle,” pursuant to which a government can prosecute foreign nationals for offenses that affect the government’s own citizens, even if committed outside the state’s territory.) The Prosecutor General thus declined to prosecute because he did not think a crime had been committed—not because he lacked jurisdiction.

#2. Classification of Conflict. Consistent with the nuanced description of the facts on the ground (see point #8 below), the Prosecutor General carefully delineates the existence of two separate non-international armed conflicts that were playing out simultaneously in the Federally Administered Tribal Areas (FATA) of Pakistan as of 2010: one between the Pakistani government and the multiple insurgent groups it was fighting; and one between the Afghan government, supported by ISAF, and the Afghan Taliban Movement (the umbrella group for the Taliban in Afghanistan). Interestingly, the decision concludes that there is no need to attribute the specific military action at issue to one of these two specific conflicts. Rather, notes the Federal Prosecutor, the strike in question likely supported goals in both conflicts, and it would be impossible to attribute it to just one or the other.

#3. Pakistani Consent. Critical to the Prosecutor General’s analysis of the conflict classification is the conclusion that Pakistan unofficially (if not officially) consented to the U.S. drone operations in the FATA. As a result there was no violation of Pakistan’s sovereignty and thus no “internationalization” of what is otherwise a non-international armed conflict. In the words of the prosecutor:

After all, Pakistan was perfectly capable of demanding that the US (at least temporarily) suspend its aerial drone operations over Pakistan’s sovereign territory . . . However, Pakistan resorted to such measures only in cases in which its own soldiers were killed and even then, the measures were kept in place only until an official apology had been received from United States representatives for the respective incident. . . . Insofar as US military operations exclusively killed insurgents fighting the government, the Pakistanis neither imposed sanctions nor demanded any apology for any corresponding “breach of sovereignty”.

The prosecutor also contrasts the mild notes verbales issued in response to the drone strikes of purported concern to the much stronger-worded rebukes made in the wake of the 2011 killing of Osama bin Laden.

#4. Territorial Limitation of the Conflict. The Prosecutor General goes out of his way to critique the U.S. position on the scope of conflict. After emphasizing that the conflict determination applies only to the time period at hand (2009-2010) and territory at issue (the Pakistani FATA region), the Prosecutor General then makes clear that he is not in any way taking “recourse” in the “War on Terror” theory first promulgated by President George W. Bush. (There was no hint that he had been.) In the words of the Prosecutor General:

[S]uch a blanket justification for acts of war contravenes the underlying spirit of international humanitarian law, namely to place the maximum possible constraints on war per se, as well as on the methods by which it is waged and the populations which it impacts.

Rather, he argues, “the application of the international laws of war, with their special prohibitions and empowerments, continue to be limited in territorial scope to actual theatres of war only.” Moreover, in a footnote, the Prosecutor General makes clear that his beef is not just with the Bush administration, but applies to the Obama administration’s view on the scope of the conflict with al Qaeda as well:

It has since become evident that the Obama Administration is holding fast to at least certain key points of the “War on Terror Doctrine.” Thus, the US Justice Department regards operations against key organised strongholds of Al Qaeda or its allies, especially ones involving aerial drones, to be part and parcel of the non-international conflict between the United States and Al Qaeda, even when they occur outside a “zone of active hostilities.

Lots to think about here. Just Security’s Nathalie Wiezmann (and I’m sure others) will have more to say about this aspect of the opinion in the coming days.

#5. Legality of Drones Under International Law. The Prosecutor General rejects the oft-heard claim that the use of drones is inherently unlawful. While noting that the physical disconnect between the drone operator and target makes it harder to comply with the principle of distinction in certain circumstances, he emphasizes that in this case drones were operating where ground troops could not. Moreover, he concludes any arguable disadvantage is offset by the fact that drones can gather information on their target for extended periods before attacking. (He also quickly disposes of the separate argument that the use of drones constitutes an act of perfidy.)

#6. Status of CIA Operatives. The Prosecutor General grapples with the status of CIA operatives who are the ones, by all accounts, conducting drone operations in the FATA. Applying a functional analysis, the Prosecutor General concludes that CIA operatives qualify as members of the “armed forces,” at least as that term is defined in Additional Protocol I to the Geneva Conventions, thus satisfying a requirement for operating “aerial devices” under international law. Specifically, the decision emphasizes that while the CIA operatives are not integrated into military command structure, they are nonetheless under the auspices of other governmental agencies which represent a “responsible command” for the entire effort; they are in regular communication with the military units in Afghanistan; and they are effectively filling a military function. This is a noteworthy conclusion, with much broader implications beyond the confines of this case. It means that CIA operatives would be entitled to combatant status if captured and, among other things, immune from prosecution for status-based killings.

#7. Capture v. Kill. The decision wades into the capture v. kill debate, concluding that physical capture should take precedence over killing, but only so long as “this would not generate additional risks for the military units involved or the civilian population.” This is not a particularly strong presumption, since there is almost always some additional risk in capture operations during armed conflict. In the case at hand, the Federal Prosecutor concludes that it would have been impossible to perform a military capture and arrest operation without a “heightened risk” for the soldiers involved or for the civilian population. While true, the standard – as expressed this way – means that in practice there will almost never be a requirement to capture as opposed to kill, at least outside the state’s own territory.

#8. The Background. Last but not least, the facts. For anyone interested in what was happening in the FATA in 2009-2010, this is among the best – most succinct and thorough – summaries I have seen to date. In particular, Part I.B.2 provides an incredibly useful description of all the key players; the players’ overlapping, but in many ways distinct goals; and the nature of the fighting that was taking place at the time. Definitely worth a read. 

About the Author(s)

Jennifer Daskal

Associate Professor at American University Washington College of Law Follow her on Twitter (@jendaskal).