Legal Explainer: German Court Reins in Support for U.S. Drone Strikes

On March 19, 2019, the Higher Administrative Court of the German state of North Rhine-Westphalia pronounced its decision concerning Germany’s involvement in U.S. drone operations due to the involvement of the U.S. air base in Ramstein, Germany. The Court’s decision overruled the previous decision by the administrative court in Cologne and found “considerable indications” that current U.S. military operations in the Republic of Yemen are in violation of international law and that Germany must therefore develop a mechanism to ensure that U.S. operations involving Ramstein respect international law. The decision may therefore be historic on at least two levels.

First, it is the first court decision that finds large parts of the U.S. system of drone operations likely in violation of international law. Second, it requires, as a matter of law, Germany to seek a more demanding and critical role toward the United States regarding the use of military operations involving German territory. This puts further stress on the relationship between Germany and the United States at a time at which the formerly very close friendship has already strained.

This contribution will highlight the main findings of the Court. However, it should be stressed that thus far, only some aspects of the decision are known due to particularities of the German legal system. While the Court had to pronounce the outcome of the decision (partially successful for the Yemeni plaintiffs) and also set out the basic reasoning behind its decision, the Court now has further time to produce its final written judgment which will be of a significantly more detailed nature.

Why Germany?

The case became possible due to the far-reaching guarantees of the German Constitution (Grundgesetz/GG). Individuals are granted the right to life under art. 2(2) GG. The German Constitutional Court has interpreted this right not only to amount to a right to be free from state interference, but further that the state has some protective duties. Such duties relate to all persons regardless of German nationality and even cover foreign territory. This of course does not mean that Germany is obliged to protect everyone around the world from any kind of harm. However, the Yemeni claimants argued that under the German framework set out above, Germany could not grant the U.S. military bases that it needed to engage in killings that were contrary to international law.

The specific perspective of the case was the following: Yemeni citizens believed their lives to be unlawfully threatened by U.S. drone operations (which were made possible via Ramstein). This means that the case did not address a single individual strike but rather the general system of operations. Hence, a single or a small number of unlawful operations would not necessarily justify any success by the claimants, because it would not show a systematic pattern of unlawful conduct. In that case, Germany would likely not have an obligation to investigate the operations via Ramstein as a whole. This does not preclude that Germany might also be obliged to work toward accountability mechanisms for individual unlawful operations; a question not at issue in the Court proceedings.

The Decision in a Nutshell

Not all of the claims succeeded. The most far-reaching claim was to prohibit the use of Ramstein as a U.S. air base altogether. This claim failed as the Court held that the use of Ramstein is not per se unlawful. However, previously Germany had relied on unspecific statements by the United States that Ramstein was only used in conformity with the law. Despite some reports shedding doubt on some aspects of drone operations, Germany did not investigate the lawfulness of individual operations or the overall system of operations. The claim connected to this issue succeeded. According to the Court, due to the numerous reports alleging the unlawfulness of the U.S. operations, Germany was no longer in a situation in which it could simply rely on U.S. assurances (especially those of a vague nature) but rather had the obligation to investigate further. In addition to this review dimension of the obligation, Germany may also have to implement specific mechanisms that ensure the future lawfulness of operations. The Court thus did not proscribe a specific set of measures that Germany now will have to implement. Rather, Germany has significant room to maneuver and apply whatever mechanisms it deems best suited to the situation, as long as they are measures sufficient to prevent further unlawful operations via Ramstein.

Findings Related to International Law

The pronouncement describes the examination of the international law-related aspects as very complex in nature. It may therefore be assumed that the written judgment will contain a detailed discussion whereas the oral pronouncement thus far included only the outcomes of such discussions. Nonetheless, the pronouncement already sets out important understandings and findings of the Court. Almost half of the pronouncement addresses questions of international law. The following discussion will thus be able to focus only on specific aspects of the pronouncement. Those aspects relate to the relevant characterization of the conflict as well as which parts of the U.S. system of operations the Court deemed likely unlawful.

The Court makes two specific qualifications that may influence further analyses of the situation. The first qualification concerns the jus ad bellum question of U.S. use of force in Yemen on a general level. The second pertains to the classification of the conflict in Yemen.

First, the Court considers the United States not to be in violation of the prohibition of the use of force, as it considers the U.S. presence in Yemen to be covered by an invitation to intervene from the legitimate Yemeni government. The Court thus did not have to address whether this is still an essential condition for the legal question at issue. However, the Court does not suggest that the operations might have been lawful even without such an invitation, which may be taken as a sign that compliance with jus ad bellum is, indeed, a condition that applies.

Second, in its discussion the Court repeatedly refers both to international humanitarian law as well as international human rights law. Nonetheless, it finds the existence of a non-international armed conflict (NIAC) in Yemen. In its discussion it references both jurisprudence of the International Criminal Tribunal for the former Yugoslavia as well as statements by the Security Council. In this NIAC, it sees al-Qaeda in the Arabian Peninsula (AQAP) on the one side and the Yemeni government, supported by the United States, on the other. The Court appears to assume the simultaneous existence of another NIAC between ISIS and Yemen/the United States. The Saudi coalition-Houthi conflict was not discussed in the oral pronouncement.

Concerning violations of international law by U.S. operations, the Court discusses two as violations of a general nature in addition to two specific violations that concern the conflict in Yemen. The pronouncement may be read in a way to mean that the two general violations are merely discussed to showcase the violation of the principle of distinction, which is the first general violation. In this context it needs to be stressed that the Court did not have to find for certain that the U.S. drone operations altogether violate international law. Rather it confined itself to show a high likelihood that a significant part of the system of operations is in violation of international law. This finding was sufficient to oblige Germany to take on a more inquisitive role and for Germany possibly also to take mitigating measures.

The Court sees the first general violation of international law in the U.S. understanding of the war on terror as a global war which does not assess whether a region is part of an area in which armed combat actually takes place and whether an individual terrorist is actually a combatant in a specific regional conflict. The Court finds such an understanding to be contrary to the rationale of international humanitarian law of restricting armed conflict. It nonetheless stresses that the United States has concentrated its operations on regions in which armed combat occurs.

As a second general U.S. practice that is contrary to international law, the Court cites the U.S. understanding of its right to self-defense as covering preemptive self-defense, specifically in situations in which both time and place of an enemy attack are unknown. According to the Court, this understanding could not form customary international law due to opposition it encountered.

The Court then considers the combination of these two understandings which, according to the Court, allows the United States to target a wide range of persons that ordinarily would not be legitimate targets. In this context, the Court considers the U.S. practice of targeting and finds evidence that this practice is in violation of international law. Specifically, the Court implies that civilian supporters of AQAP and ISIS as well as former combatants have been targeted by the United States even though they are not lawful targets under international humanitarian law. It is unclear why the Court did not limit itself to this specific finding regarding targeting but instead chose to connect the discussion to two arguably unrelated issues. The written judgment may be more informative on this specific point.

Finally, the Court turns to Article 6 of the International Covenant on Civil on Political Rights (ICCPR) and the prohibition of arbitrary deprivation of life. The Court begins its analysis stating that while this obligation also applies in armed conflict, no violation can be found if the target was of a legitimate nature and the principle of proportionality has been respected. The Court then refers to the jurisprudence of the European Court of Human Rights as well as the German Constitutional Court that both interpret the prohibition of arbitrary deprivation of life as requiring effective official investigations in case of any suspicion of an unjustified killing. The Court cites the 2014 report of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism which refers to reasonable suspicion of unlawful attacks in Yemen. The Court also refers to the former Special Rapporteur on extrajudicial, summary, or arbitrary killings that criticized states for failing to fulfill their obligation concerning effective, independent, and public investigations. The Court sees no evidence that any such investigations have been conducted by the United States regarding alleged violations of law in Yemen. Rather, it refers to the fact that some of the claimants had failed to get relief before U.S. courts due to the political question doctrine. The Court saw this as one indication that no effective system of investigation is in place.

This last contention by the Court raises some questions that will have to be further elaborated once the Court issues its written judgment. The Court appears to apply the ICCPR extraterritorially. Additionally, by referencing the European Court of Human Rights and the German Constitutional Court, the Court seems to confer upon the United States the very same benchmark that applies to Germany. At the same time, the Court may simply refer to Germany’s own obligations, which arguably the German government may not absolve itself of by involving another actor, to whom a lower level of legal obligations applies. Also, the reference to the Special Rapporteur on extrajudicial, summary, or arbitrary killings may already show that the Court did not solely rely on the interpretations put forward by the European Court of Human Rights and the German Constitutional Court. In general, the Court carefully stresses its reliance on sources by the United Nations and the ICRC. Such reasoning may also preemptively address criticism that an activist Court interpreted the law in a way that it sees fit.

What Next?

As stated, the Court will have some time to issue its written judgment which will most likely be of an extensive and detailed nature. What’s more, the parties may still appeal the decision to the Federal Administrative Court. If the Claimants do not succeed at that stage, they have the right to bring the case in front of the German Constitutional Court.

At the same time, because the case is framed in the specific way that the claimants depend on their right to life being currently endangered, any change that reliably addresses this danger will most likely deprive the claimants of their cause of action. Such change may lie in the introduction of a mechanism that effectively ensures the lawfulness of the system of U.S. operations. Similarly, an end to the life-threatening situation in Yemen could bring an end to the case before a final and thus legally binding judgment. The Court touches upon this issue in a different context. In its discussion on the existence of a NIAC, the Court mentions that both AQAP and ISIS may already be weakened to a degree that they may soon no longer be considered as possible parties to a NIAC, as they may in the future lack a sufficient degree of organization.

Image: An 86th Aircraft Maintenance Squadron crew chief launches a C-130J Super Hercules aircraft during Exercise Operation Varsity 19-01 on Ramstein Air Base, Germany, Feb. 28, 2019. (U.S. Air Force photo by Senior Airman Devin M. Rumbaugh)

 

About the Author(s)

Jürgen Bering

Associate at the Berlin office of Dentons Europe LLP. The author has previously been a trainee at the European Center for Constitutional and Human Rights, one of the NGOs that supported the claimants in the case. The views expressed herein are those of the author and do not necessarily reflect those of his current or former employer.