The August and September 2021 drama of the evacuation of persons under threat from a chaotic Kabul airport remains fresh in the memory of a world public that followed the events with consternation. Germany, by use of its air force, took part in that evacuation effort and, as required under the German constitution, the German government sought parliamentary assent. In that context, the government, as usual in such instances, indicated the legal bases for the use of the German armed forces as a matter of both international and constitutional law. At this point, and “innocuously” presented almost in passing at the end of a long and rather convoluted sentence, the document contains a significant new element of German State practice and its view of binding international law (opinio juris).

The government submitted that the use of German armed forces is internationally lawful because of the “continuing consent of the Government of the Islamic Republic of Afghanistan to the evacuation of German nationals, of personnel belonging to the International Community as well as other designated persons, as most recently confirmed by exchange of notes dated 15 August 2021.” The government could have stopped here. But it didn’t. Instead, the relevant sentence continues adding that the use of the German armed forces was also based on the “customarily recognized right” of the evacuation of nationals.

That is a remarkable statement on a significant matter of international law.

As worded, this customary right does not reinforce the argument based on Afghanistan’s consent. It rather operates as an independent legal basis. And indeed, on the assumption that there was continuing valid Afghan consent, it was unnecessary for Germany to place reliance on the said customary right. More pointedly, within the logic of the government’s legal argument, the reference to that customary right, though not worded in that way, can have no other status than that of a fallback option.

One wonders why the German government considered it desirable to put forward this subsidiary legal position. Possibly, this had to do with certain unarticulated qualms regarding Afghanistan’s “continuing consent.” After all, the German government explicitly acknowledges in the same statement that the old Afghan government, that is, the one which had confirmed Afghanistan’s consent as late as on Aug. 15, 2021, had subsequently “imploded” and given way to the Taliban’s “seizure of power.” Alternatively, or cumulatively, the German government thought it convenient to signal its belief in the customary right in question in order to strengthen the case for the assertion of such right in the future when reliance on State consent might be of no avail in a given rescue scenario. In that connection, it may be worth recalling that already when German armed forces evacuated nationals from Albania in March 1997 and from Libya in February and March 2011, it was less than crystal clear that the governments concerned had consented to Germany’s course of action.

Whatever the motivation, the German government has coined its new legal position in conspicuously laconic language. The explicit reference to no more than “evacuation” as the subject matter of the right in question may perhaps be taken to suggest that the government did not intend to go further than to include action often referred to as a “non-combatant evacuation operation” in more recent State and scholarly parlance. But it is needless to say that also such a more narrowly defined customary right raises interesting legal questions. The most interesting of those is whether an evacuating State, through that very action alone, prima facie falls within the international legal principle concerning the prohibition of the use of force. If so, the “customarily recognized right” in question would constitute a customary exception also from the treaty rule enshrined in Article 2 (4) of the U.N. Charter, an idea involving a number of fairly obvious legal intricacies.

In view of those intricacies, it was perhaps not entirely unwise for the German government to leave its more precise understanding of the “customarily recognized right” essentially a matter of speculation. But quite irrespective of finer legal nuances having been left in a cloud of uncertainty, the new element of German State practice would appear to be of note, and also the fact that Germany, reluctant as it has traditionally been in that respect, has chosen to engage in some modest form of “legal diplomacy” in the surroundings of nothing less than the prohibition of the use of force.

Photo credit: Soldiers from German Bundeswehr arrive at the airport in Wunstorf, northern Germany on August 27, 2021 at the end of a military evacuation operation to fly out German nationals, local workers and other people at risk from Kabul, Afghanistan (Axel Heimken/AFP via Getty Images)