Judgment of 15 July 2025

R e a s o n s : 

A.

1

The constitutional complaint concerns the deployment of armed drones in the Republic of Yemen by the United States of America (hereinafter: United States) using technical facilities located at Ramstein Air Base and the question of whether the Federal Republic of Germany has violated a duty of protection that may have existed vis-á-vis the Yemeni complainants.

2

The complainants are citizens of the Republic of Yemen. They live in the town of Khashamer, Al-Qutn district, Hadramout province, Yemen together with their families. The complainants are nephews of a Muslim clergyman who was killed together with a police officer, also a relative, and three individuals presumed to be members of Al-Qaida in the Arabian Peninsula (AQAP) in a drone strike by the United States in front of the mosque in Khashamer on 29 August 2012.

I.

3

1. In response to the terror attacks of 11 September 2001, the United States Congress passed a joint resolution (‘Authorization for the Use of Military Force’, [...]) which authorises the U.S. President to use all necessary and appropriate force against those nations, organisations, or persons he determines planned, authorised, committed, or aided the terrorist attacks that occurred on 11 September 2001, or harboured such organisations or persons, in order to prevent any future acts of international terrorism against the United States. This resolution has been employed by the U.S. government as a national legal basis for actions taken against the Taliban, Al-Qaida and ‘associated forces’. To be considered an ‘associated force’, an entity must be an organised, armed group that has entered the fight alongside Al-Qaida or the Taliban and a co-belligerent in their hostilities against the United States or its coalition partners. Certain individuals and groups affiliated with Al-Qaida and the Taliban in Afghanistan as well as AQAP, Al-Shabaab in Somalia, individuals who are part of Al-Qaida in Libya, Al-Qaida in Syria and the so-called Islamic State (ISIL/ISIS/IS) are considered ‘associated forces’ within this meaning ([…]). The resolution remains in force and serves as legal basis for the actions taken by the United States against the aforementioned non-state groups and individuals in foreign countries.

4

The United States subsequently began to use armed drones operated from within the United States for targeted killings in Yemen and other countries. The first remotely targeted aircraft strike in Yemen took place in 2002. These strikes intensified beginning in 2009 ([...]). The exact numbers of legitimate military targets and protected civilians killed in drone strikes are subject to debate. In 2016, the U.S. government declared that between 64 and 116 civilians had been killed in Libya, Pakistan, Somalia and Yemen between 20 January 2009 and 31 December 2015. The government further stated that between 2,372 and 2,581 legitimate military targets have been eliminated. The U.S. government acknowledged that there are discrepancies between its own assessments and reporting from non-governmental organisations, which estimate a range of more than 200 to over 900 possible deaths of civilians in the period from 20 January 2009 to 31 December 2015 (cf. U.S. Director of National Intelligence, Summary of Information Regarding U.S. Counterterrorism Strikes Outside Areas of Active Hostilities, 1 July 2016, pp. 1 f.; [...]).

5

2. The United States has published various documents concerning the legal bases for the deployment of armed drones.

6

a) During the term of office of President Obama, the deployment of the drones was explained publicly, in particular in a document published in 2016 entitled ‘Report on the Legal and Policy Frameworks Guiding the United States‘ Use of Military Force and Related National Security Operations’. [...]

7

[...]

8

b) The practice of targeted killings using armed drones is further regulated by varying ‘policies’ and other national provisions enacted by the respective administrations.

9

These ‘policies’ are drafted by the U.S. government as political guidelines; the establishment of such policies is not considered by the respective U.S. administrations to be obligatory. The Presidential Policy Guidance (PPG) of the Obama Administration of 22 May 2013, the Principles, Standards, and Procedures (PSP) of the first Trump Administration and the Presidential Policy Memorandum (PPM) of the Biden Administration, each of these of unknown date, all have in common that so-called direct actions, including the use of lethal force and capture operations, against individuals must be conducted in accordance with U.S. law and policy and international law. All three documents prioritise capture operations over the use of lethal force. Further, any direct action aimed at killing a terrorist target is subject to prior legal review. The ‘policies’ set a ‘near certainty’ standard, according to which there must be near certainty that any action taken will not injure or kill civilians. Lastly, all three documents emphasise to varying degrees that the ‘policies’ do not bind the U.S. President, who may deviate from them. All three documents contain redacted passages regarding mission preparation, execution, and follow-up. Whether the ‘policies’ are adhered to has to date not been subject to judicial review (cf. United States District Court for the District of Columbia, Ahmad Muaffaq Zaidan et al. v. Donald J. Trump et al., Memorandum Opinion of 13 June 2018, Civil Action No. 17-581 <RMC>, p. 23).

10

Executive Order 13732 on the investigation of civilian collateral damage and the introduction of annual reporting obligations on the number of killed civilians and legitimate military targets, issued by President Obama on 1 July 2016, was revoked by President Trump on 6 March 2019 with Executive Order 13862. Nevertheless, since 2017, the U.S. Congress has required the U.S. Secretary of Defense to publish annual reports on civilian casualties caused as a result of United States military operations during the preceding year (cf. National Defense Authorization Act for Fiscal Year 2018, Pub. L. 115-91, 12 December 2017, 131 Stat. 1283 <1572>, Sec. 1057(a); National Defense Authorization Act for Fiscal Year 2019, Pub. L. 115–232, 13 August 2018, 132 Stat. 1636 <1970 f.>, Sec. 1062; National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116–92, 20 December 2019, 133 Stat. 1198 <1797>, Sec. 1703(a)). These annual reports demonstrate, among other things, the difficulty of precisely quantifying civilian collateral damages. It was not always possible to provide exact statistics and numbers provided in previous reports occasionally required correction later based on new findings (cf. e.g. Annual Report on Civilian Casualties in Connection with United States Military Operations in 2021, p. 8; Annual Report on Civilian Casualties in Connection with United States Military Operations in 2022, pp. 5 ff.).

11

The budget legislator also obligated the Secretary of Defense to allow an independent assessment of Department of Defense standards, processes, procedures and policy relating to civilian casualties (cf. National Defense Authorization Act for Fiscal Year 2020, Pub. L. 116–92, 20 December 2019, 133 Stat. 1198 <1809 f.>, Sec. 1721). Following lengthy discussions concerning civilian casualties, on 15 December 2021, the U.S. Congress obligated the Department of Defense to draft a ‘Civilian Casualty Policy’. In January 2022, the Department of Defense published a report conducted for the Department by the RAND Corporation, which found that while the Department of Defense had established a strong foundation for compliance with the law of war, the current approach to assessing, investigating and responding to civilian collateral damage showed considerable weaknesses and was inconsistent across theatres of conflict (cf. Secretary of Defense, Memorandum for Secretaries of the Military Departments et al., 27 January 2022; RAND Corporation, U.S. Department of Defense Civilian Casualty Policies and Procedures – An Independent Assessment, 2022, pp. vii f.). In August 2022, the Department of Defense published the ‘Civilian Harm Mitigation and Response Action Plan (CHMR-AP)’, which aims at improving the way in which the Department mitigates and responds to civilian harm resulting from military operations (cf. U.S. Department of Defense, Civilian Harm Mitigation and Response Action Plan, 25 August 2022). The 2023 ‘National Defense Authorization Act (NDAA)’ further provided that the ‘Civilian Center of Excellence’ of the Department of Defense was to enter into an agreement with a federally funded research and development centre to draft an independent report on Department of Defense practices regarding the criteria to distinguish between combatants and civilians in both ground and air operations since 2001, including in Afghanistan, Iraq, Syria, Somalia, Libya, and Yemen (cf. National Defense Authorization Act for Fiscal Year 2023, Pub. L. 117–263, 23 December 2022, 136 Stat. 2395 <2788>, Sec. 1067).

12

On 31 July 2023, the Department of Defense published an amended version of the ‘Law of War Manual’, which outlines the legal views of the U.S. government concerning the law applicable in armed conflicts. Under the principle of distinction, commanders and other decision-makers must presume that persons are protected from being made the object of attack unless the information available at the time indicates that the persons are military targets. A person may be considered to be a military target even if some doubt remains, provided that commanders and other decision-makers make their decisions in good faith based on the information available at the time and act consistent with other obligations to seek to reduce the risk of incidental harm to civilians (cf. Department of Defense, Law of War Manual – June 2015 <Updated July 2023>, pp. 201 ff. para. 5.4.3.2). The legal view expressed in previous versions of the Law of War Manual that no presumption of civilian status exists under customary international law (cf. Department of Defense, Law of War Manual – June 2015, p. 197 para. 5.5.3.2; Law of War Manual – June 2015 <Updated December 2016>, pp. 200 f. para. 5.4.3.2) is not reiterated.

13

In December 2023, the U.S. Department of Defense published a document titled ‘Department of Defense Instruction (DoD-I) on Civilian Harm Mitigation and Response’ on the topic of civilian harm (cf. Department of Defense, DoD Instruction 3000.17, Civilian Harm Mitigation and Response, 21 December 2023). The Instruction implements the ‘Civilian Harm Mitigation and Response Action Plan’ and further specifies the stipulations made therein. Among other things, the document contains provisions for all U.S. military operations, regardless of whether the United States acts unilaterally or together with allied and partner forces. It further states that the Department of Defense will take steps to incorporate civilian harm mitigation and response measures into planning and operations (cf. Department of Defense, DoD Instruction 3000.17, Civilian Harm Mitigation and Response, 21 December 2023, pp. 21 f., 27). The 2024 Budget Act imposes further reporting obligations with respect to civilian harm resulting from operations by other countries conducted with support from intelligence shared by an element of the U.S. intelligence community (cf. National Defense Authorization Act for Fiscal Year 2024, Pub. L. 118-31, 22 December 2023, 137 Stat. 136 <1044>, Sec. 7326).

14

3. The deployment of armed drones for the purpose of targeted killings and the ensuing deaths of numerous civilians have raised international criticism.

15

a) The practice of targeted killings and the deployment of armed drones is the subject of four reports by UN Special Rapporteurs Alston (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Philip Alston, UN Doc. A/HRC/14/24/Add.6, 28 May 2010), Heyns (Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, UN Doc. A/68/382, 13 September 2013) and Emmerson (Reports of the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism, Ben Emmerson, UN Doc. A/68/389, 18 September 2013 and UN Doc. A/HRC/25/59, 11 March 2014).

16-19

[...]

20

b) Criticism has also been raised [in resolutions of the Human Rights Council, the European Parliament and the Parliamentary Assembly of the Council of Europe as well as by the International Committee of the Red Cross (hereinafter: ICRC) and the Human Rights Committee]. [...]

II.

21

1. Ramstein Air Base was opened in June 1953. It was built on the basis of a treaty between France and the United States in the former French occupation zone. [...]

22

2. In April 2010 and November 2011, the Federal Ministry of Defence (Bundesministerium der Verteidigung) was informed by the U.S. Armed Forces of the planned construction of a satellite relay station on Ramstein Air Base that was to be used for the operation of, among other things, armed drones in foreign countries. On 15 December 2011, the Ministry declared that it did not have any objections to this construction project in the Direct Procedure (Truppenbauverfahren). [...]

23

3. [...] On 20 March 2014, the German Bundestag decided that it would establish a committee of inquiry [Untersuchungsausschuss] ([...]). Prompted in particular by press reports in the wake of revelations by Edward Snowden concerning internet and telecommunications surveillance, this committee of inquiry was tasked with determining, inter alia, whether, during the period of 2001 to the present, U.S. authorities had conducted telecommunications surveillance, capture operations or targeted killings using armed drones on or originating from German territory, what, if any, intelligence federal authorities had had at which time and whether federal authorities had been part of the preparation or execution of such operations in any way.

24-28

[...]

29

4. In response to a parliamentary inquiry, the Federal Government stated in January 2017 that it would remain in close contact with its U.S. partners regarding the deployment of unmanned aerial vehicles and the role of Ramstein Air Base (cf. Bundestag document, Bundestagsdrucksache – BTDrucks 18/11023, p. 5). As to the question of which intelligence or assumptions formed the basis of the Federal Government’s belief in the assurance of the United States that activities on military premises in Germany were conducted in accordance with the applicable laws, the Federal Government replied that according to Art. II of the Agreement between the Parties to the North Atlantic Treaty regarding the Status of their Forces (NATO Status of Forces Agreement – NSOFA) the United States had to respect the law of Germany. […]

30

[...]

III.

31

1. In October 2014, the complainants and one additional person filed an action against the Federal Republic of Germany before the Cologne Administrative Court. They requested that the Federal Republic of Germany be obliged to take appropriate steps to prevent the United States from using Ramstein Air Base, and the satellite relay station in particular, for the deployment of unmanned aerial vehicles from which missiles intended to kill persons are launched within the territory of Yemen, Hadramout province, and specifically in Al-Qutn district in the town of Khashamer and at the respective residential addresses of the complainants. By way of subsidiary application, the complainants requested the Cologne Administrative Court to find that not taking the steps requested in the main application was an unlawful omission. To substantiate their application, the complainants asserted the right to demand that the Federal Republic of Germany protect their right to life and physical integrity under Art. 2(2) first sentence in conjunction with Art. 1(1) of the Basic Law (Grundgesetz – GG) as well as under Art. 2(2) first sentence in conjunction with Art. 25 of the Basic Law.

32

2. The Cologne Administrative Court rejected the action by judgment of 27 May 2015. It held that the action, while admissible with regard to its main application, was unfounded. [...]

33

3. On appeal on points of fact and law against this judgment, the Higher Administrative Court of North Rhine-Westphalia modified the decision of the Cologne Administrative Court by judgment of 19 March 2019. The Higher Administrative Court directed the Federal Republic of Germany to take appropriate measures to work towards ensuring that any use of Ramstein Air Base for the deployment of unmanned aerial vehicles from which missiles intended to kill persons are launched [...] take place in accordance with public international law as set forth in the reasons of the judgment and that, where necessary, the Federal Republic of Germany endeavour to encourage the United States’ compliance with public international law. It dismissed the remainder of the action.

34

a) [...]

35

The Higher Administrative Court held that the Federal Republic of Germany is, in principle, obligated under Art. 2(2) first sentence of the Basic Law to protect foreign nationals living abroad from harm being inflicted on their life or physical integrity by a foreign state in a manner violating international law if such harm originates from German territory. […]

36

b) The Higher Administrative Court found that the United States deployed armed drones including in Yemen using technical facilities located at Ramstein Air Base and personnel stationed there. In particular, the court stated that it had been fully convinced that the data stream needed to remotely control armed drones was transmitted in real-time from the United States using a satellite relay station located in Ramstein and that the satellite relay station thus provided the necessary link between the pilots located in the United States and the armed drones in their respective theatres of operation, including Yemen. Additionally – although this was not determinative of its decision – the Higher Administrative Court found there to be sufficiently strong factual evidence suggesting that the role of Ramstein Air Base in the deployment of armed drones, including in Yemen, was not limited to a mere transmission of information using the satellite relay station, but rather also encompassed an analysis and evaluation of information.

37

c) The court further found strong indications that the deployment of armed drones in Yemen using Ramstein Air Base had violated public international law in more than just isolated cases and that, therefore, further drone operations violating international law must be expected in the future.

38

The Higher Administrative Court found significant doubt regarding whether the United States’ general operational procedures in deploying armed drones in Yemen duly considered the principle of distinction established in international humanitarian law. [...]

39

In addition, it could not establish that the United States had sufficiently met its obligation to conduct official investigations into deaths that had occurred in connection with the deployment of armed drones in Yemen. [...]

40

According to the Higher Administrative Court, the described operational procedures of the United States therefore give rise to a threat that the deployment of drones using Ramstein Air Base conducted in violation of international law could endanger the complainant’s life and limb and thus implicate fundamental rights. [...]

41

d) The Higher Administrative Court further held that the Federal Republic of Germany had thus far failed to act in sufficient accordance with its duty of protection: While the Federal Republic of Germany had a wide margin of appreciation when fulfilling the duty of protection and the corresponding claim for protection of the complainants, it had violated the limits of this margin because it had based its actions on the assumption that there was no reason to doubt that the deployment of drones by the United States took place in accordance with public international law and this assumption was incorrect at least in regard to Yemen.

42-44

[...]

45

4. Following the appeal on points of law initiated by the Federal Republic of Germany, the Federal Administrative Court, by judgment of 25 November 2020, modified the decision of the Higher Administrative Court and rejected the appeal on points of fact and law against the judgment of the Cologne Administrative Court brought by the complainants and one additional applicant. The Federal Administrative Court held that to the extent that the Higher Administrative Court had granted the relief sought by the complainants on the merits, it had based its decision on incorrect legal standards in regard to Art. 2(2) first sentence of the Basic Law and its resulting duty of protection (see a) below). Although the question of whether a duty of protection on the part of the Federal Republic of Germany had arisen under the law applicable as a standard of review in an appeal on points of law (revisibles Recht) could not be decided without additional factual findings of the Higher Administrative Court (see b) below), the Federal Administrative Court nevertheless concluded that it was able to make its own decision on the merits, as it could be followed from the findings made by the Higher Administrative Court that even if such duty existed, the Federal Republic of Germany had met the requirements of a duty of protection (see c) below).

46

a) The Federal Administrative Court found that the legal standards applied by the Higher Administrative Court for establishing a duty of protection were incorrect.

47

aa) According to the Federal Administrative Court, the judgment of the Higher Administrative Court violates the law applicable as a standard of review in an appeal on points of law simply on the basis of its finding that a sufficiently qualified link to Germany could be established even if the relevant contribution within German territory to the creation of the threat to the constitutionally protected interests was limited to a purely technical transmission process without any decisional character. The fact that technical facilities located within Germany are part of a process whose planning and execution are otherwise exclusively controlled by officials of a foreign state located outside of Germany was not sufficient, in an evaluative assessment, to give rise to a duty of protection of the Federal Republic of Germany. [...] In order to avoid transgressing the limits of German responsibility in extraterritorial matters envisaged by the Constitution, it is also necessary that parts of the larger overall situation that impairs or endangers fundamental rights which are decisive for the legal evaluation take place within German territory. [...] Thus, only those actions or technical procedures within German territory which have sufficient decisional character can give rise to a duty of protection arising from the Basic Law.

48

bb) The Federal Administrative Court also found the Higher Administrative Court’s holding that the duty of protection could be triggered not only if a future impairment of the legal interests protected under Art. 2(2) first sentence of the Basic Law caused by the actions of a foreign state in Germany that violate public international law were certain, but also when there was an impending threat to the life and limb of the fundamental rights holder caused by actions that violate international law, to be incompatible with the law applicable as a standard of review in an appeal on points of law. Contrary to the opinion of the Higher Administrative Court, a duty of protection could only arise if the number and circumstances of previous violations of international law allowed for the specific expectation that the other state would also commit comparable violations of international law in the future that impaired or endangered legal interests protected by the Basic Law. An impending danger of impairments violating the Basic Law did not suffice, as it would lead to a responsibility of Germany in extraterritorial cases that would in effect be limitless. [...]

49

cc) The Federal Administrative Court further held that the standards applied by the Higher Administrative Court when examining whether a duty of protection existed violated the law applicable as a standard of review in an appeal on points of law not least because the Higher Administrative Court had failed to recognise that when assessing the actions of foreign states under international law, the Federal Government had a margin of appreciation within the framework of tenable legal views. [...]

50

b) In the absence of additional factual findings from the Higher Administrative Court, the Federal Administrative Court found itself to be unable to decide whether the Federal Republic of Germany had been under a duty of protection arising from the Basic Law vis-á-vis the complainants.

51

It held that for the necessary qualified link to German territory to exist, it is not sufficient that the data stream for controlling the armed drones deployed in Yemen is transmitted from the United States to Ramstein Air Base via fibre-optic cable and sent from there to the drone using a satellite relay station. Only those actions or technical procedures within German territory which have sufficient decisional character can give rise to a duty of protection. [...]

52

It further held that the factual findings made by the Higher Administrative Court do also not allow for assessing whether the drone strikes executed by the United States in Yemen using Ramstein Air Base regularly violated the provisions of international humanitarian law and the prohibitions of indiscriminate attacks against military targets and civilians and of attacks causing disproportionate collateral damage in particular. [...] The Higher Administrative Court had only generally pointed out that there were sufficient indications that the past deployment of armed drones in Yemen using Ramstein Air Base, including those in Hadramout province, had violated public international law in more than just isolated cases and that it therefore must be expected that future drone operations would also violate international law. However, a mere indication that there are grounds for the existence of certain facts cannot replace the necessary conclusive factual findings.

53

c) The Senate of the Federal Administrative Court nevertheless refrained from remanding the proceedings to the Higher Administrative Court. The Court held that it can be concluded from the findings in the judgment of the Higher Administrative Court that, even assuming the existence of a duty of protection, the Federal Republic of Germany had fulfilled such duty. Contrary to the holding of the Higher Administrative Court, the measures taken by the Federal Government were not rendered inadequate because the government failed to conduct its own legal evaluation […], or because the measures taken by the Federal Government had so far been limited to consultations […] and obtaining a legal assurance from the United States […]. In particular, the Federal Republic of Germany was neither required to confront the United States with a specific legal opinion […] nor was it required to consider any further steps […].

54-59

[...]

IV.

60

With their constitutional complaint, the complainants challenge the decisions of the Cologne Administrative Court of 27 May 2015 and of the Federal Administrative Court of 25 November 2020. They allege a violation of their fundamental rights under Art. 2(2) first sentence and Art. 19(4) first sentence of the Basic Law.

61

1. The complainants submit that the Federal Administrative Court violated their rights under Art. 2(2) first sentence of the Basic Law by assuming that a qualified territorial link of the source of the threat to the Federal Republic of Germany was necessary. The fact that the U.S. Armed Forces were effectively given the ability to act on German territory sufficed, it is argued, to give rise to a duty of protection. In order to establish a responsibility of the Federal Republic of Germany under constitutional law, it was not necessary in their opinion that parts of a larger overall situation which are decisive for the legal evaluation take place in Germany. [...]

62

To the extent that the Federal Administrative Court required a qualified risk prognosis, thereby making the existence of a duty of protection dependent on the number and circumstances of past violations of international law giving rise to the specific expectation that future comparable violations of protected legal interests would take place, it failed to properly recognise the scope of protection granted by Art. 2(2) first sentence of the Basic Law. [...]

63

The Federal Administrative Court further failed to do justice to the protection granted under the fundamental right by requiring a need for a qualified determination of the unlawfulness of the threat to be averted, in this case a violation of international law, in addition to the qualified risk prognosis required as part of the constituent elements to be assessed. According to the complainants, the unlawfulness of the threat to be averted is generally not a constituent element of a duty of protection arising from the Basic Law. Rather, it is the objective threat to a fundamental right which must be assessed as constituent element. [...]

64

Furthermore, by affording the executive a margin of appreciation with regard to the legal evaluation of the actions of a foreign power that endanger the legal interests protected by Art. 2(2) first sentence of the Basic Law, the Federal Administrative Court misapprehends the scope of this fundamental right. By granting the executive the right to make the final decision in this regard, the Federal Administrative Court further violated the fundamental right to effective legal protection under Art. 19(4) first sentence of the Basic Law. The complainants contend that the argument adopted by the Federal Constitutional Court in its decision of 16 December 1980 (Decisions of the Federal Constitutional Court, Entscheidungen des Bundesverfassungsgerichts – BVerfGE 55, 349) that no authoritative procedure exists to determine the contents of customary international law is no longer as relevant given the current state of development of international law. [...]

65

2. Moreover, the consultations of the Federal Government with representatives of the United States and the assurances obtained by them were, when assessed against constitutional standards, manifestly unsuitable and entirely inadequate to end the threat to the protected legal interests. [...]

66-67

[...]

V.

68

1. The Federal President, the German Bundestag, the Federal Government and the Bundesrat were given the opportunity to submit statements.

69

2. The Federal Government submits that the constitutional complaint is inadmissible from the outset because the grounds that weigh against the existence of a duty of protection also mean that the complainants do not have standing. It further contends that the constitutional complaint is unfounded in any case.

70

a) According to the Federal Government, there are serious objections on the basis of fundamental rights doctrine that can be made against an extraterritorial duty of protection that can only be overcome in narrow factual circumstances. The necessary link to the Federal Republic of Germany required under constitutional law imposes even higher requirements than those found to exist by the Federal Administrative Court. A specific link in the form of Germany’s territorial or personal responsibility for the protected interest concerned is a constituent element of an extraterritorial duty of protection. A territorially grounded duty of protection can exist when the impairment of fundamental rights takes place within Germany, that is, when the affected legal interest is located within the spatial sphere of responsibility of German sovereign power. The duty of protection can also arise on a personal basis when constitutionally protected legal interests of German citizens in foreign countries are concerned. Therefore, duties of protection only exist vis-á-vis citizens or persons within the territory of Germany.

71

The Federal Government further submits that, at a minimum, a qualified link to Germany as established by the Federal Administrative Court is required and that such a link does not exist in the present case. Mere circumstantial involvement of Germany in a course of events controlled by a foreign country cannot establish a fundamental rights responsibility and, therefore, cannot give rise to a duty of protection arising from the Basic Law. The purely technical involvement of Ramstein Air Base does not constitute a significant link to Germany. [...] Even if ground personnel stationed at Ramstein Air Base were tasked with analysing the transmitted data, and images taken by the on-board cameras in particular, no operative decisions regarding the selection of targets and the deployment of weapons would be taking place in Germany. Rather, these would be processes of evaluation and assessment of information, which, taken on their own, are normatively neutral.

72

In addition to a necessary link to Germany, a duty of protection arising from the Basic Law also requires that violations of international law by the United State would be specifically foreseeable in the context of the case at hand. In assessing possible violations of international law, the wide spectrum of legal views in international law must be taken into account. By removing the requirement of a violation of international law, this would mean that foreign countries would in effect be held to the standards set by the Basic Law.

73

The Federal Government further contended that the Federal Administrative Court rejected the necessary element of illegality in a way that was unobjectionable under constitutional law. [...]

74

It had correctly assumed the existence of a margin of appreciation of the Federal Government with regard to the appreciation of the actions of foreign states, limited only by the framework of tenable legal views. [...]

75

b) [...]

76

[...]

VI.

77

By order of 29 October 2024, the Senate found that Justice Wöckel was barred from exercising his judicial duties in the present case because of his previous ex officio involvement in the same case prior to his appointment as Justice of the Federal Constitutional Court (§ 18(1) no. 2 Federal Constitutional Court Act (Gesetz über das Bundesverfassungsgericht – BVerfGG)). He was involved in the proceedings before the ordinary courts that lead to the judgment of the Higher Administrative Court of North Rhine-Westphalia of 19 March 2019.

VII.

78

The Federal Constitutional Court conducted an oral hearing on 17 December 2024, in the course of which the complainants explained and expanded upon their submissions. The Federal Government also made use of this opportunity to make a statement. Prof. Dr. Heike Krieger (Free University of Berlin) and Prof. Dr. Stefan Oeter (University of Hamburg) submitted statements as expert third parties within the meaning of § 27a of the Federal Constitutional Court Act.

VIII.

79

[...]

B.

80

The constitutional complaint is admissible. In particular, the complainants have standing. An obligation imposed by the fundamental rights of the Basic Law on the German state to protect the complainants from a deployment of armed drones in Yemen by the United States which violates public international law, insofar as such deployment takes place using the satellite relay station located at Ramstein Air Base, cannot be ruled out from the outset. Whether such duties of protection exist is a question belonging to the merits of the decision (cf. also BVerfGE 157, 30 <87 para. 90> – Climate Change).

C.

81

The constitutional complaint is unfounded. The challenged decisions do not violate the fundamental rights of the complainants. The fundamental right to life and physical integrity under Art. 2(2) first sentence in conjunction with Art. 1(2) of the Basic Law and the Basic Law’s principle of openness to international law can, under certain circumstances, entail a duty of protection aimed at efforts directed at third countries to comply with provisions of international humanitarian law that serve the protection of life and the applicable human rights. Such a duty of protection can also exist vis-á-vis foreign nationals living abroad (see I. below). However, as there is no serious risk of a systematic violation of applicable public international law, there is no such duty of protection in the case at hand (see II. below). Thus, a violation of Art. 19(4) first sentence of the Basic Law is also excluded (see III. below).

I.

82

The fundamental right to life and physical integrity under Art. 2(2) first sentence of the Basic Law not only provides the individual with a defensive right against the state, but can also give rise to a duty of protection of the state (see 1. below). The Basic Law’s openness to international law in conjunction with Art. 1(2) of the Basic Law gives rise to a mandate of protection in favour of international humanitarian law and the applicable human rights (see 2. below). Under certain circumstances, this general mandate of protection may give rise to a specific duty of protection that also applies vis-á-vis non-German citizens living abroad; this duty of protection can be directed at working towards ensuring that a foreign state comply with provisions of international humanitarian law that serve the protection of life and the right to life established under public international law (see 3. below).

83

1. In addition to providing the individual with a defensive right against state interference with these legal interests, the fundamental right to life and physical integrity under Art. 2(2) first sentence of the Basic Law also constitutes an objective decision on constitutional values that establishes duties of protection on the part of the state. This entails the state’s obligation to protect and promote the legal interests of life and physical integrity and to safeguard these interests against (unlawful) interference by others (cf. BVerfGE 39, 1 <42>; 46, 160 <164>; 77, 170 <214>; 79, 174 <201 f.>; 115, 320 <346>; 121, 317 <356>; 142, 313 <337 paras. 69 f.>; 149, 293 <322 para. 74>; 157, 30 <111 para. 145>). The state’s duty of protection arising from Art. 2(2) first sentence of the Basic Law does not take effect only after violations have already occurred. It is also oriented towards the future (cf. BVerfGE 49, 89 <140 ff.>; 53, 30 <57>; 56, 54 <78>; 121, 317 <356>; 157, 30 <111 para. 146>). The protection of life and physical integrity under Art. 2(2) first sentence of the Basic Law encompasses protection against impairments and degradation of constitutionally guaranteed interests, regardless of who or what circumstances are the cause (cf. for environmental pollution BVerfGE 49, 89 <140 ff.>; 157, 30 <112 para. 147>).

84

2. a) The duty to respect international law, which follows from the Basic Law’s openness to international law, has three dimensions. First, German state bodies are obliged to comply with the legal obligations of the Federal Republic of Germany under public international law and to refrain from violating these obligations. Second, the legislator must ensure that, with respect to the domestic legal order, violations of international law committed by German state organs can be remedied. Third, German state organs may under certain circumstances also have a duty to enforce international law within their respective area of responsibility if violations are committed by foreign states (cf. BVerfGE 112, 1 <26>; 141, 1 <29 para. 70>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 March 2018 - 2 BvR 1371/13 -, para. 34).

85

b) With its Art. 1(2), the Basic Law affords special protection to the core provisions of international human rights law (cf. BVerfGE 111, 307 <329>) which can differ from the constitutional protection afforded to other obligations under international law (cf. for a differentiation between human rights and other international law obligations from the perspective of constitutional law BVerfGE 141, 1 <32 para. 76>). Considering Art. 1(2) of the Basic Law and keeping in mind the Basic Law’s openness to international law, the fundamental rights of the Basic Law must be interpreted in line with international and European human rights (BVerfGE 83, 119 <128>; 111, 307 <329>; 142, 313 <345 ff. paras. 87 ff., 348 f. paras. 92 ff.>; 149, 293 <328 para. 86>; 151, 1 <26 f. paras. 61 f., 29 ff. paras. 66 ff.> – Exclusion from voting rights in Bundestag elections; 160, 79 <111 para. 88> – Risks of disadvantages for persons with disabilities in triage situations). The Basic Law also adapts to a gradual acceptance of peremptory provisions, i.e. those that states may not derogate from in the individual case (ius cogens). These are provisions which are firmly rooted in the legal understanding of the community of states; they are indispensable for public international law to exist and compliance with them may be insisted on by all members of the community of states. Included are provisions on the international maintenance of peace, the right of self-determination of peoples, fundamental human rights as well as the core provisions for the protection of the environment and of international humanitarian law (cf. BVerfGE 18, 441 <448 f.>; 112, 1 <27 f., 30 f.>). Consequently, the Federal Republic of Germany has a general mandate of protection which encompasses safeguarding fundamental human rights and international humanitarian law, including in cases which also involve foreign countries. In this regard, the legislator must, inter alia, ensure that the sharing of data collected by German authorities with other countries or international organisations does not erode the protections of the European Convention on Human Rights and other international human rights treaties; the legislator must further ensure that the information is not used to kill or torture people in violation of human rights or international humanitarian law or to detain them without due process (cf. BVerfGE 141, 220 <342 para. 328, 345 para. 336>; 154, 152 <275 para. 237> – Surveillance of foreign telecommunications by the Federal Intelligence Service). Under no circumstances may the state be complicit in violations of human dignity (cf. BVerfGE 54, 341 <357>; 63, 332 <337>; 76, 143 <157 f.>; 80, 315 <333>; 113, 154 <162>; 140, 317 <347 para. 62>; 141, 220 <342 para. 328>; 154, 152 <275 para. 237>).

86

3. The general mandate to protect human rights and international humanitarian law may, under certain circumstances depending on the individual case, give rise to a specific duty of protection (cf. BVerfGE 142, 313 <338 para. 71>; 158, 170 <186 paras. 34 f.> – IT security vulnerabilities; 160, 79 <114 para. 97>). When the danger to life or physical integrity originates from the actions of a foreign country, the general mandate to protect gives rise to a specific duty of protection only in cases in which there is a serious risk that international humanitarian law and/or international human rights, in particular the right to life, are systematically violated by the actions of the foreign state. Such duty of protection derived from Art. 2(2) first sentence of the Basic Law is based on the observance of the applicable public international law which serves the protection of life (see a) below). When considering threats originating from foreign countries (see b) below), a duty of protection can exist vis-á-vis individuals whose life is protected by international humanitarian law and international human rights. The Constitution does not provide for a limitation of the duty of protection to German citizens and those resident in Germany (see c) below). However, for such a duty of protection to arise, two prerequisites must be met. First, there must be a sufficient link to the sovereign powers of the Federal Republic of Germany which establishes the necessary nexus of responsibility (see d) below). Second, there must be a serious risk of a systematic violation of the applicable public international law (see e) below). When assessing whether such a risk of systematic violations of public international law exists and how it can be addressed in the specific case, the legal view of the German state bodies competent to decide in matters of foreign affairs and security policy must be carefully considered insofar as the legal view proves to be tenable (see f) below). These standards take into account the obligations under public international law that must be observed by the Federal Republic of Germany (see g) below).

87

a) Under Art. 1(3) of the Basic Law, the German sovereign powers are comprehensively bound by the fundamental rights of the Basic Law. This binding effect is not limited in scope to German territory (see aa) below). When interpreting Art. 2(2) first sentence of the Basic Law as the basis of a duty of protection relating to actions of foreign countries, they must be aligned with public international law, in particular with internationally accepted human rights and international humanitarian law (see bb) below).

88

aa) Art. 1(3) of the Basic Law provides that German sovereign powers are comprehensively bound by the fundamental rights of the Basic Law; this binding effect is not limited in scope to German territory (cf. BVerfGE 31, 58 <72 f.>; 100, 313 <362>; 154, 152 <215 para. 88>; 157, 30 <125 para. 175>). Art. 1(2) of the Basic Law recognises inviolable and inalienable human rights as the basis of every human community, of peace, and of justice in the world. The Basic Law thus places fundamental rights in the context of international human rights guarantees that aim to provide the protection that is accorded to individuals as human beings across national borders. Accordingly, Art. 1(2) and Art. 1(3) of the Basic Law build upon the guarantee of human dignity enshrined in Art. 1(1) of the Basic Law (cf. BVerfGE 154, 152 <218 f. para. 94>).

89

The comprehensive binding effect of fundamental rights on German sovereign powers does not alter the fact that the specific protections afforded by fundamental rights can differ according to the circumstances in which they are applied. Just as this is the case for the different dimensions of the effect of fundamental rights within Germany (cf. with regard to the differentiation between defensive rights of the citizen against the state and duties of protection of the state BVerfGE 96, 56 <64>; 133, 59 <76 para. 45>; 157, 30 <114 para. 152>), it is also the case for their scope of protection in other countries. It may thus also be necessary in the case at hand to distinguish between the different dimensions of fundamental rights – for example as defensive rights against state interference, as positive obligations of the state, as decisions on values enshrined in the Constitution, or as the basis for duties of protection (cf. BVerfGE 154, 152 <224 para. 104>).

90

bb) In cases with implications for international relations, constitutional law must be reconciled with public international law (cf. BVerfGE 100, 313 <362 f.>). The scope of fundamental rights must be derived from the Basic Law itself, taking into account Art. 25 of the Basic Law and the Basic Law’s openness to international law. Depending on the constitutional provisions in question, further modifications and differentiations may be permissible or required (cf. BVerfGE 31, 58 <72 ff.>; 92, 26 <41 f.>; 100, 313 <362 f.>). Thus, when Art. 2(2) first sentence of the Basic Law is the basis for a duty of protection relating to military actions of foreign countries which pose a threat to life, it must be interpreted with due consideration to the rules of public international law that pertain to the protection of life in armed conflicts. These are, more specifically, international humanitarian law and internationally accepted human rights. The aim of international humanitarian law is not only to restrict the means of warfare, but also to protect the civilian population (cf. BVerfGE 149, 160 <210 para. 135>). These provisions are frequently regarded as ius cogens; consequently, all states are required to cooperate in a way that ensures that any violations are brought to an end (cf. ICJ, Advisory Opinion of 8 July 1996 – Legality of the Threat or Use of Nuclear Weapons –, ICJ Reports 1996, p. 226 <257 para. 79>; Advisory Opinion of 19 July 2024 – Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem –, available at https://www.icj-ij.org/sites/default/files/case-related/186/186-20240719-adv-01-00-en.pdf <p. 74 para. 274, p. 76 para. 279>; cf. also Art. 41 of the Draft Articles on the Responsibility of States for Internationally Wrongful Acts, presented by the International Law Commission, Annex to Resolution 56/83 of the General Assembly of the United Nations of 12 December 2001).

91

It would go too far to make compliance with all public international law obligations the subject of a duty of protection under constitutional law. Yet, violations of human dignity and international humanitarian law can lead to serious impairments. They may therefore be a point of reference for an extraterritorial duty of protection arising from constitutional law (cf. BVerfGE 157, 30 <125 f. para. 175>). This takes into account the special protection accorded to the inviolable and inalienable human rights in the Basic Law (Art. 1(2) of the Basic Law) as compared to other obligations under public international law (cf. BVerfGE 141, 1 <32 para. 76>). This also applies to international humanitarian law which intends to ensure the protection of the human rights of the civilian population in armed conflicts, in particular the right to life and physical integrity.

92

b) Insofar as this duty of protection is aimed at compliance with international law rules regarding the protection of life, it also encompasses dangers that originate from actors that are not bound by the fundamental rights of the Basic Law. In general, this also includes dangers posed by foreign states (cf. BVerfGE 112, 1 <25 f.>). In regard to the protection of German citizens and their interests via-á-vis foreign states, the case-law of the Federal Constitutional Court recognises that a duty of protection may also include dangers originating from sovereign entities not bound by the fundamental rights of the Basic Law (cf. BVerfGE 55, 349 <364 f.>; 66, 39 <60 f.>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 4 September 2008 - 2 BvR 1720/03 -, paras. 34, 36; Order of the Second Chamber of the Second Senate of 15 March 2018 - 2 BvR 1371/13 -, paras. 31 ff., 45 f.; […]). Thus, the Constitution imposes upon the bodies of the Federal Republic of Germany, in particular the Federal Government, the duty to protect German citizens and their interests vis-á-vis foreign states (cf. BVerfGE 6, 290 <299>; 40, 141 <177 ff.>; 41, 126 <182>; 55, 349 <364>; […]).

93

This does not lead to a danger of German fundamental rights being forced on foreign states. As has been correctly held by the First Senate of the Federal Constitutional Court in a case concerning defensive rights against state interference, the binding effect of German fundamental rights only entails responsibility and accountability on the part of German state bodies. The binding effect of fundamental rights does not amount to a violation of the principle of non-intervention or to a restriction of other states’ executive or legislative powers (cf. BVerfGE 154, 152 <222 para. 101>). These considerations apply equally where the duty of protection pertains to the adherence to public international law rules which also bind foreign states.

94

c) The duties of protection arising from the fundamental rights of the Basic Law are not limited to German citizens or individuals within the territory of Germany (cf. BVerfGE 157, 30 <125 f. para. 175>; regarding cases concerning defensive rights against state interference BVerfGE 154, 152 <215 f. paras. 88 f.>). They can also protect non-German citizens resident in foreign countries if the threats against them have a sufficient link to the sovereign powers of the Federal Republic of Germany (cf. paras. 98 ff.).

95

At the time that the Constitution entered into force, Art. 1(3) of the Basic Law was especially intended as a response to the National Socialist regime of terror and arbitrary rule to achieve a comprehensive binding effect of fundamental rights rooted in human dignity; as early as 1949, the provision was supported by the conviction that the Federal Republic of Germany had to find its place in the international community as a partner that abides by the rule of law (cf. BVerfGE 154, 152 <216 para. 89> with further reference). This is reflected in the Basic Law’s preamble and in particular in Arts. 1(2), 24 and 25 of the Basic Law. It cannot be inferred from the legislative history of the Basic Law that fundamental rights protection was always meant to end at the national border. Rather, the Basic Law’s aim to provide for comprehensive fundamental rights protection and to place the individual at its centre suggests that fundamental rights ought to provide protection wherever the German state acts and might thereby create a need for protection – irrespective of where and towards whom it acts (cf. BVerfGE 154, 152 <216 para. 89>). Consequently, fundamental rights are also meant to protect where German state authorities allow for dangers potentially giving rise to a need for protection if a sufficient link establishing a nexus of responsibility exists between these dangers caused by a third party and German sovereign powers (cf. paras. 101 f.).

96

That the Basic Law is not indifferent to a violation of the legal interests of individuals living abroad is further exemplified by Art. 16(2) former version, Art. 16a and Art. 26 of the Basic Law, as well as the constitutional prohibitions of deportation and extradition recognised in the case law of the Federal Constitutional Court (cf. BVerfGE 54, 341 <357>; 59, 280 <282 f.>; 60, 348 <355 ff.>; 63, 332 <337 f.>; 75, 1 <19>; 76, 143 <157 f.>; 80, 315 <333>; 108, 129 <136 f.>; […]).

97

A restriction on the scope of application of fundamental rights to citizens and individuals resident in Germany, or the presumption that a certain status relationship must exist in order for fundamental rights to apply, as proposed in parts of legal scholarship ([...]), are not recognised by the Basic Law. Rather, the principle of the openness towards international law as a constitutional decision to advance international cooperation built on the respect for and the promotion of public international law (cf. BVerfGE 111, 307 <317 f.>; 112, 1 <25>; 141, 1 <27 para. 65>) and the aspiration towards a comprehensive fundamental rights protection centred around the human individual (cf. BVerfGE 154, 152 <216 para. 89>) support the conclusion that the state’s duty of protection also applies to threats that are (at least partly) caused domestically, even if the risks entailed by such threats can only occur in a foreign country and vis-á-vis foreign citizens resident there ([...]).

98

d) An extraterritorial duty of protection can nevertheless only exist under special circumstances. At the outset, fundamental rights comprehensively and universally bind sovereign powers (see aa) below ). A responsibility with regard to fundamental rights can also arise with regard to a facilitation of or permission for dangers to fundamental rights originating from actors who are not themselves bound by fundamental rights. However, a sufficient link between the danger prompting the need for protection and the sovereign powers of the Federal Republic of Germany is required (see bb) below). Whether such a link and, thus, a nexus of responsibility exists must be determined through an overall assessment in the individual case (see cc) below).

99

aa) Public authority is comprehensively and universally bound by fundamental rights, irrespective of the specific functions, the types of action or the respective object of the exercise of state tasks. Public authority must be understood broadly, covering not only orders and prohibitions or measures based on sovereign powers. The binding effect of fundamental rights applies to any decision that can claim to be made on behalf of all citizens at the relevant level of decision-making within the state (cf. BVerfGE 154, 152 <217 f. para. 91>). This includes both sovereign and non-sovereign measures, statements and actions. Thus, any action of state organs or organisations constitutes an exercise of state authority that is bound by fundamental rights within the meaning of Art. 1(3) of the Basic Law because such actions are performed in the exercise of their mandate to serve the common good (cf. BVerfGE 154, 152 <218 para. 91> with reference to BVerfGE 128, 226 <244>). The binding effect of fundamental rights and the political responsibility for decisions are inextricably linked (cf. BVerfGE 154, 152 <218 para. 91>). It is a corollary of the political responsibility for decisions and thus corresponds to the respective responsibilities of the legislator and the executive (cf. BVerfGE 152, 152 <169 para. 42>).

100

bb) According to the rationale of these considerations, which were developed in the context of defensive rights against state interference, there are no state actions that are not bound by fundamental rights. However, there may also be a constitutional rights responsibility for omissions of the state in cases in which the Federal Republic of Germany allows for or facilitates the actions of a third party which endanger the fundamental rights of individuals living abroad. If a sufficient link exists between the danger to a fundamental right or a person affected by such danger and German sovereign power, the state bound by the Basic Law simultaneously has a possibility to act and exert its influence, which opens up a scope for action. The protective effect of the fundamental rights can take effect in the framework created by this possibility to act and exert influence. It is not necessary that German public authority alone is responsible for creating the danger in order for a sufficient link to exist (cf. BVerfGE 157, 30 <125 f. para. 175>). Nevertheless, the scope of the competences and responsibilities incumbent upon German state bodies must be taken into account when determining the extent of the binding effect of fundamental rights (cf. BVerfGE 66, 39 <57 ff.>; 92, 26 <47>; 100, 313 <362 f.>).

101

cc) The question of whether a sufficient link as a basis of a nexus of responsibility exists must be answered based on an overall assessment that takes into account the specifics of the individual case rather than a fixed set of criteria. In order for a nexus of responsibility to exist, it should not be strictly necessary that the danger prompting the duty of protection originated from a measure with decisional character that occurred within German territory. Just as in the case of defensive rights against state interference, in which the binding effect of fundamental rights pertains to both sovereign and non-sovereign measures (cf. BVerfGE 154, 152 <217 f. para. 91>), the facilitation of an action by a foreign state threatening fundamental rights, whether by an act, omission or acquiescence on the part of German state bodies, can also be relevant to fundamental rights protection.

102

If effects emanating from German territory create or contribute to a situation of danger in a foreign state, this can establish the sufficient link required for a duty of protection arising from fundamental rights (cf. BVerfGE 157, 30 <125 f. para. 175>, which left open whether a duty of protection exists; […]). However, a mere coincidental territorial contact that is only a part of a much larger overall situation does not suffice to give rise to a need for protection in a foreign country that implicates fundamental rights. Rather, a specific contribution with regard to the actions of a foreign state that give rise to the danger is needed to establish a sufficient link to German state authority that is bound by the Basic Law; such contributions must be of some significance and go beyond mere factual causation. Whether a link exists must be determined by way of an overall assessment in the individual case in the context of which the severity of the violation of public international law in question may also be taken into consideration.

103

e) Contrary to the complainants’ contention, there is an additional requirement for a general mandate of protection to give rise to a specific extraterritorial duty of protection pertaining to the actions of a foreign state, which is the existence of a serious risk of a systematic violation of the rules of international humanitarian law and international human rights which serve the protection of life. While this does not require that systematic violations of public international law have already taken place, there must be substantial indications that such violations are not only a possibility, but rather a genuine concern.

104

The state’s duty of protection arising from Art. 2(2) first sentence of the Basic Law does not take effect only after violations have already occurred, but is also oriented towards the future (cf. BVerfGE 49, 89 <140 ff.>; 53, 30 <57>; 56, 54 <78>; 121, 317 <356>; 157, 30 <111 para. 146>). It follows from the preventive nature of a duty of protection that steps to avoid the realisation of a danger in the future must be taken as soon as serious indications pointing at a danger for a protected legal interest exist (cf. BVerfGE 157, 30 <111 para. 146> with further reference). Whether and at what point an action of the state is required by the Constitution depends on the type, the urgency and the extent of possible dangers, the type and significance of the legal interest protected by the Constitution and the provisions that already exist (cf. BVerfGE 49, 89 <141 f.>; 56, 54 <78>).

105

If – as is the case here – the conduct of a foreign country possibly constitutes a violation of public international law, it must be taken into account that the Basic Law, through its Preamble and Art. 1(2), Art. 9(2), Art. 16(2), Arts. 23 to 26 and Art. 59(2), binds the Federal Republic of Germany to the international community and commits German state authority to international cooperation (cf. BVerfGE 63, 343 <370>; 75, 1 <17>; 108, 129 <137>; 111, 307 <319>; 112, 1 <25>; 123, 267 <345 f.>; 141, 220 <341 para. 325>; 162, 207 <242 para. 105> – Federal Chancellor’s right to issue political statements). In order to achieve this, the German state, among others, must be viewed as an esteemed, predictable and reliable partner within the international community. Accordingly, it is a constitutionally enshrined goal to guarantee the Federal Republic of Germany’s capacity to act and form coalitions in the context of foreign policy and to ensure its participation in international cooperation (cf. in this regard BVerfGE 100, 313 <371, 382>; 108, 129 <137>; 141, 220 <341 f. para. 325>; 154, 152 <225 Rn. 106 f., 233 f. para. 128, 240 para. 144, 248 para. 162>; 162, 207 <242 para. 105>). A permanent and comprehensive obligation to supervise, for example, the actions of troops of allied states stationed in Germany would not be reconcilable with this goal. The Federal Republic of Germany’s capacity to form coalitions is a constitutional interest which must be taken into account when specifying extraterritorial duties of protection (cf. regarding the balancing of the capacity to act and form coalitions in the context of foreign policy and the principle of equal opportunities of political parties BVerfGE 162, 207 <242 para. 105>).

106

Thus, there must be substantial indications that the risk of an allied nation violating international humanitarian law and human rights exists not only in individual cases, but rather systematically. In making this prognosis, violations of international law that have been committed in the past may serve as an indication that a risk of future violations exists; however, they are not a constitutive requirement for triggering a duty of protection (cf. with a similar approach Gerechtshof Den Haag, Judgment of 12 February 2024, 200.336.130/01 <ECLI:NL:GHDHA:2024:191>, para. 5.16). Substantial indications for the existence of such a risk may, among others, be found in the decisions of international courts – namely the International Court of Justice and the European Court of Human Rights – and of national courts, in decisions, reports and other publications of bodies of the Council of Europe or from the system of the United Nations (cf. CJEU, Aranyosi/Căldăraru, Judgment of 5 April 2016, C-404/15 and C-659/15 PPU, EU:C:2016:198, para. 89; Petruhhin, Judgment of 6 September 2016, C-182/15, EU:C:2016:630, para. 59) and from committees based on the human rights treaties or the ICRC.

107

According to the case law of the Federal Constitutional Court, advisory opinions and judgments of the International Court of Justice provide factual guidance beyond the particular case decided, serve as a subsidiary means for the determination of rules of law pursuant to Art. 38(1) letter d of the Statute of the International Court of Justice (hereinafter: ICJ Statute) and must be taken into account by the German courts based on the Basic Law’s openness to international law (cf. BVerfGE 63, 343 <361>; 77, 137 <163>; 94, 315 <329 f.>; 104, 151 <200>; 112, 1 <28>; 118, 124 <138>; 123, 267 <351 f.>; 142, 313 <346 f. para. 90>; 152, 8 <31 para. 51> – Operation Counter Daesh). When interpreting fundamental rights, the case law of the European Court of Human Rights must be taken into account (cf. BVerfGE 74, 358 <370>; 83, 119 <128>; 111, 307 <322 f.>; 120, 180 <200 f.>; 128, 326 <369 f.>; 148, 296 <351 para. 128>; 158, 1 <36 f. paras. 69 ff.> – Ecotoxicity data (Ökotox); 163, 363 <451 para. 166> – EPO). In interpreting the respective international human rights conventions, the statements made by the human rights treaty bodies are also accorded considerable weight; however, they do not have a binding effect under international law on national and international courts. When interpreting the conventions, a national court should engage with the reasoning of the competent treaty body, but does not have to endorse it (cf. BVerfGE 142, 313 <346 f. para. 90>; 149, 293 <330 f. para. 91>; 151, 1 <29 para. 65>). This applies equally to the ICRC. While it is neither a body of an international organisation nor a treaty body, its special role is acknowledged in the four Geneva Conventions (cf. the common Art. 3(2) and the common Arts. 9/9/9/10 of the four Geneva Conventions). The ICRC accumulates expertise in international humanitarian law and has experience in working with governments around the world. It advocates for a development and promotion of international humanitarian law standards ([...]). Furthermore, the ICRC acts impartially and discloses different legal views on specific questions even when these are contrary to its own legal view. The European Court of Human Rights also uses the work of the ICRC when interpreting and applying the European Convention on Human Rights (cf. ECtHR <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, §§ 68, 80, 84 f., 137; Ukraine and The Netherlands v. Russia, Judgment of 30 November 2022, nos. 8019/16, 43800/14, 28525/20, §§ 405, 623 f., 634).

108

In determining whether a danger exists that violations of public international law occur not only in individual instances but systematically, a distinction can be made between legal or factual indications, depending on whether the danger relates to the legal basis under public international law of specific actions or to their effects. The specific indications must be examined on their own and additionally as part of an overall assessment in order to determine whether they constitute a serious risk of a systematic violation of public international law.

109

f) When assessing whether the actions of a foreign state pose such a danger, the legal view of the German state bodies competent to decide in matters of foreign affairs and security policy, to whom the Basic Law generally affords a wide margin for managing external relations, must be carefully considered insofar as this legal view proves to be tenable (still different BVerfGE 55, 349 <368>, in which only arbitrariness is addressed; regarding a review of reasonableness in general cf. BVerfGE 118, 244 <268 f.>; 121, 135 <158>; 152, 8 <29 para. 46>).

110

With regard to the scope of a duty of protection, it must also be kept in mind that it is the state bodies of the Federation competent for foreign affairs and security policy who are generally tasked with deciding how Germany’s duty of protection vis-á-vis foreign states or other actors is satisfied (cf. BVerfGE 66, 39 <60 f.>; 143, 101 <153 para. 170>; Federal Constitutional Court, Order of the Second Chamber of the Second Senate of 15 March 2018 - BvR 1371/13 -, para. 46). The scope of such duty vis-á-vis individuals resident in foreign countries does not necessarily have to be the same as the duty towards individuals who live within Germany (cf. BVerfGE 157, 30 <126 para. 176>). Its content may, under certain circumstances, require modification and differentiation (cf. BVerfGE 100, 313 <363>; 154, 152, Headnote 1; 157, 30 <126 para. 176>). Considering the limitations on the exercise of sovereign power imposed on Germany by public international law, the state does not have the same range of options to provide protection to individuals resident in foreign countries as it has in purely domestic matters (cf. BVerfGE 157, 30 <127 para. 178>). In situations in which the Federal Republic of Germany does not have sole control of the circumstances, the duty of protection may require the state to engage in internationally oriented activities (cf. BVerfGE 157, 30 <113 para. 149, 139 ff. paras. 199 ff.>; 161, 63 <112 para. 105> – Wind Farm Participatory Companies).

111

g) The aforementioned standards take into account the Federal Republic of Germany’s duties under public international law.

112

According to the case-law of the International Court of Justice, it follows from the common Art. 1 of the Geneva Conventions that every state party to the Conventions is obliged to ensure compliance with the requirements of the respective treaties, regardless of whether that state is itself party to a specific armed conflict. The ICJ holds that this obligation not only derives from the Conventions themselves but also from the general principles of international humanitarian law to which the Conventions merely give specific expression (cf. ICJ, Decision of 30 April 2024 – Alleged Breaches of Certain International Obligations in respect of the Occupied Palestinian Territory, Nicaragua v. Germany –, […] <p. 8 para. 23>, with reference to ICJ, Judgement of 27 June 1986 – Military and Paramilitary Activities in and against Nicaragua, Nicaragua v. United States of America –, ICJ Reports 1986, p. 14 <114 para. 220>; Advisory Opinion of 9 July 2004 – Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory –, ICJ Reports 2004, p. 136 <199 f. para. 158>). A duty to protect that requires the state vis-á-vis foreign countries to seek to achieve compliance with international humanitarian law if the prerequisites identified above are met contributes to fulfilling this obligation.

II.

113

Measured against these standards, a violation of the complainants’ fundamental rights by the challenged decisions can ultimately not be found. The Federal Administrative Court may not have met the requirements of Art. 2(2) first sentence of the Basic Law by negating the existence of a sufficient link of the source of the danger to German sovereign power from the outset on the basis that there were no actions with decisional character (see 1. below). Yet, whether such a sufficient link of the danger to fundamental rights to German sovereign power exists need not be decided here because there was in any case no serious risk of a systematic violation of the applicable public international law and thus the general mandate to protect under Art. 2(2) first sentence of the Basic Law did not give rise to a specific duty of protection (see 2. below).

114

1. An argument can be made that the involvement of Ramstein Air Base in the deployment of armed drones by the United States of America in Yemen, as can be deduced from the findings of fact made by the ordinary courts (see a) below), serves to establish a sufficient link of the source of the danger to German sovereign power, which is a requirement for the existence of a duty of protection vis-á-vis the complainants (see b) below).

115

a) According to the findings of the Higher Administrative Court, Ramstein Air Base and the satellite relay station located on its premises, which is used for transmitting data and control signals for drones as well as data collected by drones, play a central role for deploying armed drones in Yemen, among other places. The Higher Administrative Court based its finding primarily on the final report of the NSA-committee of inquiry of the German Bundestag and on the insights gained in its proceedings, among them the statements of a former member of the U.S. Air Force, who was heard as a witness. According to this witness, all data and information transmitted between the aerial vehicle and the control staff was transmitted through Ramstein. Without the relay station, it would not have been possible to transmit the satellite signal from the drone in a country (in the Middle East) back to the United States. The witness also reported the existence of a direct fibre-optic cable connection between Ramstein Air Base and the U.S. Department of Defense. The special importance of Ramstein Air Base has also been the subject of discussions between the United States and the Federal Republic of Germany. The former Minister of State of the Federal Foreign Office Roth reported to the German Bundestag that the United States, during a discussion on 26 August 2016, had mentioned that its global communications pathways for the support of unmanned aerial vehicles also included signalling posts in Germany used for forwarding the command signals.

116

b) These findings suggest that a sufficient link between the source of the danger and German sovereign power exists in the case at hand.

117

This is indicated by the fact that the contact with German territory occurs more than merely coincidentally in the process of forwarding data. By constructing the satellite relay station at Ramstein Air Base, an infrastructure was developed that specifically serves to deploy armed drones. The Federal Government was also aware of this, as, according to the findings of the ordinary courts, it had been informed by the U.S. Armed Forces in April 2010 and again in November 2011 of the planned construction of a satellite relay station that was to be used for the operation of, among others, armed drones in foreign countries. Additionally, the deployment of armed drones in Yemen is dependent on Ramstein Air Base.

118

These facts appear sufficient to give rise to a specific responsibility of the Federal Republic of Germany – including in comparison to other states – for the situation of danger in Yemen ([...]). A possibility to act and exert influence with regard to the dangers exists insofar as the relay station, which is located on German territory and thus within the sphere of authority and responsibility of German sovereign power, is a necessary instrument in deploying the drones. In this sphere of responsibility, German state bodies are required by the Constitution to bring public international law to bear (cf. BVerfGE 112, 1 <24>). The public international law framework applicable to the stationing of troops does not only not oppose this – rather, it also enables the enforcement of international law based on constitutional obligations. First and foremost, it stipulates an obligation to respect German law (Art. II, Art. IX(3) NSOFA and Art. 53(1) of the Supplementary Agreement to the NSOFA, Zusatzabkommen zum NATO-Truppenstatut – NSOFA Suppl. Agr.; cf. also BVerfGE 77, 170 <222, 224>). This provision requires that, as a minimum, the stipulations of German law be satisfied (cf. BVerfGE 77, 170 <224>). This also encompasses those provisions of public international law which are part of the German legal order (cf. Decisions of the Federal Administrative Court, Entscheidungen des Bundesverwaltungsgerichts – BVerwGE 154, 328 <335>) and by which the United States is also bound on an international law level. These provisions include at a minimum the general rules of international law within the meaning of Art. 25 of the Basic Law, i.e. customary international law and the general principles of law (Art. 38(1) letter b and c ICJ Statute). Furthermore, the legal framework for the stationing of troops provides that the German authorities and the authorities of a force of an allied nation shall consult and cooperate to reconcile any differences that may arise (cf. Art. 53(1) third sentence NSOFA Suppl. Agr.; [...]). This opens up the general possibility to exert influence on a potential danger.

119

Conversely, an argument against a sufficient link to German sovereign power as a prerequisite for a constitutional responsibility to arise on the part of the Federal Republic of Germany could also be made in that the contribution originating from within German territory – Ramstein Air Base – constitutes a mere technical provision of a data and communications link between the drone and the operations and control centres in the United States, does not include any elements of decision making and that the technical forwarding of data is, from a normative standpoint, neutral, and, in an overall assessment, of only subsidiary importance.

120

2. The question of whether, given the foregoing, the required overall assessment with regard to the deployment of drones by the United States in Yemen challenged in this case has given rise to a fundamental rights responsibility on the part of the Federal Republic of Germany ultimately need not be determined. This is because based on the findings made by the ordinary courts, a serious risk of a systematic violation of the applicable public international law (see a) below), which is a requirement for the general mandate of protection to give rise to a specific duty of protection vis-á-vis the complainants, cannot be found to exist (see b) below). Consequently, whether the Federal Government fulfilled a duty of protection that may have existed vis-á-vis the complainants need not be decided (see c) below).

121

a) An extraterritorial duty of protection derived from Art. 2(2) first sentence of the Basic Law aims at compliance with the public international law rules which serve the protection of life. In the case at hand, these are international humanitarian law (see aa) below) and the internationally recognised human right to life (see bb) below).

122

aa) International humanitarian law applies not only in international armed conflicts between states, but also in a non-international armed conflict between a state and a non-state or exclusively between non-state parties to the conflict (see (1) below). Among the international humanitarian law’s core principles are the principle of distinction, the prohibition of excessive collateral damage and duties to investigate with regard to war crimes (see (2) below).

123

(1) According to a widely accepted definition of the United Nations’ International Criminal Tribunal for the Former Yugoslavia (ICTY), ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’ (cf. ICTY, Prosecutor v. Tadić, Decision of 2 October 1995, No. IT-94-1, § 70; Prosecutor v. Haradinaj, Judgment of 3 April 2008, No. IT-04-84-T, § 49; International Criminal Court (ICC), The Prosecutor v. Bosco Ntaganda, Judgment of 8 July 2019, No. ICC-01/04-02/06-2359, § 703; […]). According to the prevailing opinion, whether a non-international armed conflict exists must be determined on the basis of two cumulative criteria: the degree of organisation of the parties to the conflict and the conflict’s intensity ([...]). A non-international armed conflict does not cease to be non-international in character where a third state intervenes in the conflict with the consent of the state on whose territory the armed confrontation is taking place alone or together with that state’s armed forces (cf. ICC, The Prosecutor v. Germain Katanga, Judgment of 7 March 2014, No. ICC-01/04-01/07-3436-tENG, § 1184; […]).

124

(2) Among the core requirements and prohibitions of international humanitarian law, which are applicable in both international and non-international armed conflicts, are the principle of distinction between military targets and civilians and the prohibition of excessive collateral damage. Additionally, international humanitarian law sets forth an obligation to investigate war crimes that have possibly been committed.

125

The principle of distinction, also known as the prohibition of indiscriminate attacks, is set forth in both international treaty law (cf. Art. 51(4) Additional Protocol I) and in customary international law (cf. European Court of Human Rights (ECtHR) <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, § 81; [...]). It requires that only legitimate military targets may be made the object of an attack (cf. ICJ, Advisory Opinion of 8 July 1996 – Legality of the Threat or Use of Nuclear Weapons –, ICJ Reports 1996, p. 226 <257 para. 78>; […]). Legitimate targets in an international armed conflict are combatants, i.e. the members of the armed forces of a party to a conflict (cf. Art. 43(2) Additional Protocol I, [...]). There is no formal combatant status in non-international armed conflicts ([...]). Civilians who do not participate in hostilities are not legitimate military targets, but rather protected persons. This follows directly from the common Art. 3 of the Geneva Conventions, which, according to its wording, protects ‘persons taking no active part in the hostilities’ ([...]). This wording is taken up in Art. 51 of Additional Protocol I with regard to international armed conflicts and in Art. 13 of Additional Protocol II with regard to non-international armed conflicts. According to these provisions, civilians are privy to the protection granted by the respective Additional Protocol insofar and as long as they take no active part in the hostilities. This principle is also set forth in customary international law (cf. ECtHR <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, § 80; […]). The application of the concept of direct participation in hostilities is debated particularly with regard to non-international armed conflicts.

126

The prohibition of excessive collateral damages prohibits executing attacks which may be expected to cause damage to civilians that is excessive in relation to the concrete and direct military advantage anticipated (cf. ECtHR <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, § 81; […]). When determining the objectives to be attacked, choosing the means and methods of warfare and executing the attack, the parties to the conflict are required by customary international law and – to the extent that it is applicable – international treaty law (cf. Art. 57 Additional Protocol I) to take all feasible precautions in order to avoid attacks on civilian targets and to minimise the incidental loss of civilian life, injury to civilians and damage to civilian objects to what is absolutely necessary (cf. ECtHR <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, § 81; […]). States are also obligated to investigate war crimes that have allegedly been committed through an intentional violation of international humanitarian law and, if appropriate, to prosecute suspects (cf. ECtHR <GC>, Hanan v. Germany, Judgment of 16 February 2021, no. 4871/16, § 83; […]).

127

bb) In addition to international humanitarian law, international human rights, particularly the right to life, may also be applicable. Art. 2(1) of the International Covenant of Civil and Political Rights (hereinafter: ICCPR) stipulates that each State Party to the Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognised in the Covenant. According to the case law of the International Court of Justice and the practice of the Human Rights Committee, this wording, to the extent that it refers to the territory of the states party to it, does not exclude the extraterritorial applicability of the ICCPR during an armed conflict (cf. ICJ, Advisory Opinion of 19 July 2024 – Legal Consequences arising from the Policies and Practices of Israel in the Occupied Palestinian Territory, including East Jerusalem –, […] <p. 32 paras. 99 f. with further reference>; ICCPR Human Rights Committee, General Comment No. 36, Art. 6: Right to life, UN Doc. CCPR/C/GC/36, 3 September 2019, p. 5 para. 22, pp. 13 f. paras. 63 f.).

128

When interpreting Art. 6 ICCPR, the applicable international humanitarian law is duly considered. Using lethal force in a manner compatible with international humanitarian law and other applicable provisions of international law does not, in general,  constitute an arbitrary deprivation of life prohibited by Art. 6 ICCPR. Practices inconsistent with international humanitarian law also violate Art. 6 ICCPR (cf. ICJ, Advisory Opinion of 8 July 1996 – Legality of the Threat or Use of Nuclear Weapons –, ICJ Reports 1996, p. 226 <240 para. 25>; […]). According to the Human Rights Committee, states party should, in general, disclose the criteria which form the basis for targeted killings and must investigate alleged or suspected violations of Art. 6 ICCPR in situations of armed conflict in accordance with the relevant international standards identified in General Comment No. 36 ([...]).

129

b) Based on these public international law rules, the general mandate to protect has not given rise to a specific duty of protection in the case at hand. While the Federal Administrative Court has applied an incorrect standard in its assessment (see aa) below), this does not influence the assessment’s outcome. This is because, according to the factual findings of the ordinary courts, the deployment of armed drones in Yemen does not pose a serious risk of a violation of international humanitarian law and the right to life under Art. 6 ICCPR (see bb) below).

130

aa) To the extent that the Federal Administrative Court holds that a duty of protection can only arise if the number and circumstances of previous violations of international law allow for the specific expectation that the other state will in the future also commit comparable violations of international law that impair or endanger legal interests protected by the Basic Law, it applies a standard that is not viable under constitutional law. It follows from the preventive character of duties of protection that previous violations of international law are not a constitutive requirement for the existence of such a duty (cf. supra paras. 103 ff.). Consequently, it is incorrect to conclude that there must first be a discernible practice of violations of public international law of the other state going beyond isolated individual cases, against which the German state must intervene on the basis of a duty of protection in order to prevent their continuation ([...]).

131

bb) Nevertheless, there are no sufficient indications in the factual findings of the ordinary courts that the general mandate to protect has given rise to a specific duty of protection. Neither the – partially disputed – legal views of the United States governments (see (1) below) and critical international statements regarding operational procedures (see (2) below) nor an overall assessment (see (3) below) suffice to assume the existence of a serious risk of future systematic violations of the applicable public international law.

132

(1) The legal view of the United States, on which it bases the deployment of armed drones in Yemen is not, in and of itself,  suited to provide substantial indications that a serious risk of systematic violations of international humanitarian law exists. It cannot be ascertained that the criteria applied by the United States in order to distinguish between legitimate military targets and civilians protected against direct attack in the context of the non-international armed conflict in Yemen are untenable (see (a) below). The conclusion that a practice systematically violating public international law exists also cannot be drawn from the United States’ opinion that the ICCPR does not bind it outside of its territory (see (b) below). In light of this, the view of the Federal Government regarding the reasonableness of the United States’ legal view is itself tenable under public international law (see (c) below).

133

(a) The distinction between combatants and civilians in non-international armed conflicts is the subject of intensive debate (see (aa) below). The legal view taken by the United States stays within the limits of what is tenable under public international law (see (bb) below).

134

(aa) To the extent that and as long as civilians do not take an active part in hostilities, they are protected persons and not legitimate military targets. This principle, which is laid down in common Art. 3 of the Geneva Conventions, as well as in Art. 51(3) of Additional Protocol I and Art. 13(3) of Additional Protocol II, is also accepted as customary international law (cf. Supreme Court of Israel, Public Committee against Torture in Israel et al. v. Government of Israel et al., Judgment of 14 December 2006, HCJ 769/02, paras. 30 f.; […]). The details of the concept of direct participation in hostilities is, however, the subject of scholarly debate. Consensus exists with regard to the starting point that civilians who take an active part in hostilities lose the protection against being made the direct object of an attack for the duration of their participation. However, according to a prevalent, if not entirely uncontested, opinion, it is increasingly accepted that individuals who fight for an organised armed group qualify as legitimate military targets not only for the duration of their specific direct participation, but also beyond that period (cf. paras. 137 ff.).

135

When deciding what criteria are to be used in determining who belongs to this group of individuals, differing approaches are applied. The United States is of the opinion that persons who are formally or functionally part of a non-state armed group are legitimate military targets because they share in the group’s hostile intent (cf. Department of Defense, Law of War Manual – June 2015, p. 218 para. 5.8.3; Law of War Manual – June 2015 <Updated December 2016>, p. 222 para. 5.7.3; Law of War Manual – June 2015 <Updated July 2023>, p. 230 para. 5.7.3). Formal membership in an armed group may be indicated by taking an oath of loyalty to the group’s leader, wearing a uniform that identifies members of the group or carrying relevant documents, but also where a person acts at the direction of the group leader, performs a function for the group that is analogous to a function normally performed by a member of a state’s armed forces, takes a direct part in hostilities, accesses facilities, such as training camps or other houses used by the group that outsiders would not be permitted to access or travels along specific clandestine routes used by those groups or together with members of the group ([...]). If a group is not organised in a formal command structure, a person may be deemed to be functionally part of that group where that person is integrated into the group such that they share the group’s intention to commit hostile acts. This distinguishes the individual from persons who are merely sympathetic to the group’s goals. An individual may be made the object of attack based on their association with an armed group unless they have unambiguously severed their association with that group ([...]).

136

In its Interpretive Guidance ‘Direct Participation in Hostilities’ developed on the basis of a drafting process involving experts, the ICRC applies a functional definition; members of an armed group are those individuals whose continuous function it is to directly participate in hostilities (so-called ‘continuous combat function’, cf. ICRC, Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law, 2009, p. 27). The legal concept of the continuous combat function is applied in order to distinguish the members of an organised armed group of a non-state party to the conflict from civilians who only spontaneously or sporadically take a direct part in hostilities. It requires a lasting integration into an organised armed group. Individuals who accompany or support an organised armed group, but whose function does not involve direct participation in hostilities, are not members of that group and retain their status as civilians. This applies to recruiters, trainers, financiers and propagandists and to persons who trade or otherwise distribute weapons outside of specific military operations ([...]). In order to qualify as a direct participation in hostilities, a specific act must adversely affect the military operations or military capacity of a party to an armed conflict or, alternatively, inflict death, injury or destruction on persons or objects protected against direct attack. There must be a direct causal link between the act and the harm likely to result from it and the act must be specifically designed to directly cause harm in support or to the detriment of a party to the conflict ([...]).

137

(bb) To the extent that the requirement of a continuous combat function formulated by the ICRC appears narrower than the criteria used to determine who qualifies as legitimate military targets applied by the United States, this does not automatically necessitate the conclusion that the approach taken by the United States must be seen as untenable. The Interpretive Guidance of the ICRC does not bind the states party to the Geneva Conventions. Rather, it serves as a subsidiary means for the determination of rules of law pursuant to Art. 38(1) letter d of the ICJ Statute. In light of state practice to date, it cannot be determined that the content of the Interpretive Guidance has been accepted to be customary international law in its entirety thus excluding any other approaches which exceed it like that taken by the United States. At the same time, the approach taken by the United States does not prove to be untenably broad.

138

(α) Together with the general principles of international law, customary international law is part of the general rules of international law within the meaning of Art. 25 of the Basic Law (cf. BVerfGE 15, 25 <32 ff.>; 16, 27 <33>; 23, 288 <317>; 94, 315 <328>; 96, 68 <86>; 118, 124 <134>; 141, 1 <17 f. para. 42>). Whether a provision is one of customary international law or a general principle of law follows from public international law itself, which provides the criteria for the sources of international law. Given that the general rules of international law are binding upon all states, this determination is subject to stringent requirements (cf. BVerfGE 118, 124 <134 f.>; Federal Constitutional Court, Order of the Third Chamber of the Second Senate of 3 July 2019 - 2 BvR 824/15, 2 BvR 825/15 -, para. 31). The identification of customary international law requires determining whether there is general state practice that is accepted as law; the relevant practice must be consistent and as uniform as possible among a widespread and representative number of states and other subjects of international law with law-making authority and must be evidence of a belief that this practice is rendered obligatory (opinio iuris sive necessitatis) (cf. ICJ, Judgment of 18 December 1951 – Fisheries Case, United Kingdom v. Norway –, ICJ Reports 1951, p. 116 <131>; Judgment of 20 February 1969 – North Sea Continental Shelf Cases, Federal Republic of Germany/Denmark; Federal Republic of Germany/Netherlands –, ICJ Reports 1969, p. 3 <43 f. paras. 74, 77>; established case law; cf. also Conclusions 2, 8 and 9 on the Identification of customary international law, presented by the International Law Commission, Annex to Resolution 73/203 of the General Assembly of the United Nations of 20 December 2018; cf. also BVerfGE 66, 39 <64 f.>; 94, 315 <332>; 96, 68 <86 f.>; 109, 38 <53 f.>).

139

(β) In light of this, it cannot be assumed that the content of the Interpretive Guidance of the ICRC comprehensively and conclusively reflects customary international law. There is no consensus showing that the Interpretative Guidance did, at the time that it was published, represent a codification of established law or that it would subsequently have found general approval in its entirety.

140

The drafting process, which took place from 2003 to 2008 and involved 50 experts from scientific fields, the military, governments and non-governmental organisations led to the publication of the Interpretive Guidance in May 2009. It is not a document based on the consensus of all experts involved in the drafting process; rather, it represents the position of the ICRC ([...]). Consequently, the international debate did not end with the publication of the Interpretative Guidance ([...]).

141

Even though some states employ the approach of the ICRC as reference or also base their approach on a continuous combat function (cf. Federal Ministry of Defence, Law of Armed Conflict – Manual –, Joint Service Regulation <ZDv> 15/2 – May 2013, p. 20 para. 131; Joint Service Regulation A-2141/1, International Humanitarian Law in Armed Conflicts (Zentrale Dienstvorschrift A-2141/1, Humanitäres Völkerrecht in bewaffneten Konflikten), p. 159 para. 1309; [...]), no sufficiently general practice can yet be found that would allow for the conclusion that approaches other than that taken by the ICRC are excluded. According to the view taken by Professor Krieger, who was heard as an expert third party in the proceedings, the assumption that the membership in an organised armed group can lead to the loss of protection as a civilian can claim validity as customary international law. Beyond this, it could at most be assumed that the view taken by the ICRC of the requirement of a continuous combat function may soon crystalise into customary international law, but that it has not yet arrived at that point. The requisite practice is not, at this time, sufficiently widespread among the community of states. While there are a number of states which have explicitly or implicitly adopted the ICRC’s interpretation, there are also states that take into account only the membership in an organised armed group. In addition to the United States, this includes Australia; the legislator there consciously refrained from codifying the interpretation of the ICRC into law in 2016 (cf. Parliament of Australia, Advisory Report on the Criminal Code Amendment <War Crimes> Bill 2016, paras. 2.28 f.). Professor Oeter, who was also heard as an expert third party in the proceedings, arrived at the conclusion that the requirement of a continuous combat function has now been accepted as a minimum consensus among all relevant military powers. Whether this consensus is conclusive or whether the extended membership approach, as taken by states like the United States and Israel, is excluded is still subject of ongoing debate. A group of states is said to go beyond the approach taken by the ICRC.

142

The varying assessment of the ambiguous state practice is also reflected in legal scholarship. On the one hand, it is emphasised that the Interpretive Guidance of the ICRC serves as an important contribution for further developing international humanitarian law ([...]) and that the categories put forward by it were beginning to become established ([...]). Exercising a continuous combat function is a minimum requirement for a person to qualify as a legitimate military target ([...]). In this regard, it has been criticised that the classification of persons outside of specific combat actions as legitimate targets introduces a status as yet unknownto the law of non-international armed conflicts which does not contain a formal combatant status ([...]). On the other hand, opinions can be found which deny that the interpretation of the ICRC has attained the status of customary international law, criticise it and state that a consensus with regard to the concept of a continuous combat function does not yet exist ([...]). The requirement of a continuous combat function is seen to be too strict. According to this interpretation, members of a state’s armed forces and members of organised armed groups are not treated equally as, when applying the approach taken by the ICRC, an attack on the latter is excluded when they lack the continuous combat function even if there is no doubt with regard to their membership in such group, while at the same time the membership in the military of a state party to a conflict suffices to qualify the individual in question as a legitimate military target ([...]).

143

(γ) The varying and partly contradictory opinions in legal scholarship and the statements of the legal experts do not allow for the conclusion that the legal view taken by the United States in determining legitimate military targets in non-international armed conflicts, insofar as it differs from the approach taken by the ICRC, must be found to be outside of what is tenable under public international law.

144

According to the assessment of Professor Krieger, the Law of War Manual of the United States includes criteria to determine when a membership can be assumed based on formal and functional aspects, which are tenable in most cases. This assessment corresponds with an opinion in legal scholarship which at the same time points out that certain members of non-state organised armed groups fulfil merely diplomatic functions that do not constitute a participation in the framework of an armed conflict and that it is thus tenable not to qualify these persons as legitimate military targets ([...]). It nevertheless does not follow from the fact that there is marked criticism of the legal view taken by the United States ([...]) that this legal view would need to be understood to be untenably broad.

145

The Senate is not oblivious to the prevalent criticism regarding the view of the United States that the actions against terrorist groups are part of a global war on terror (cf. The National Security Strategy of the United States of America – September 2002, Preface, p. 5; The National Security Strategy of the United States of America – March 2006, pp. 8 f., 12) or a global campaign waged against Al Qaida and its terrorist affiliates (cf. National Security Strategy – May 2010, p. 19). According to this criticism, the strategy of a global war on terror exceeds the limits of what is tenable under public international law with regard to the spatial and temporal extension of non-international armed conflicts (cf. e.g. ICRC, Commentary on the Third Geneva Convention, 2021, p. 190 para. 516, [...]). However, these concerns are not relevant in the present case, as this case indisputably regards the deployment of armed drones by the United States on invitation of the Yemeni government within the framework of a non-international armed conflict in Yemen.

146

(b) Nor does a serious risk of a systematic violation of the right to life under Art. 6 ICCPR follow from the fact that the United States, referring to the wording of Art. 2(1) ICCPR which explicitly only requires every state party to the covenant to undertake to respect and ensure the rights recognised by the covenant to those individuals within its territory and subject to its jurisdiction, does not accept the extraterritorial applicability of said covenant. While the United States thereby adopts a legal view incommensurate with the jurisprudence of the International Court of Justice and the practice of the Human Rights Committee (cf. supra para. 127), it cannot be established that the application of this legal view has had an effect on the operational procedures in the case at hand. If the deployment of armed drones is in line with the requirements of international humanitarian law which must be taken into account when interpreting Art. 6 ICCPR, it will, in general, also fulfil the requirements set forth by human rights (cf. supra para. 128).

147

To the extent that the Higher Administrative Court found that it cannot be ascertained that the United States conducted independent investigations of lethal drone strikes, this does also not justify the existence of a serious risk of systematic human rights violations. It is true that the Human Rights Committee requires publications and investigations on this matter (cf. supra para. 128). However, the way in which the U.S. authorities handles civilian casualties and damages caused by the deployment of armed drones has changed with time. Since 2017, the U.S. Department of Defense is required to submit annual reports on civilian casualties (cf. supra para. 10). Additionally, criteria for the avoidance of and a better response to civilian casualties, which are to be implemented in the planning and execution of operations (cf. supra paras. 11, 13), have since been established.

148

(c) With this in mind, the view taken by the Federal Government that the interpretation of the applicable public international law applied by the United States – while not fully coextensive with the interpretation applied by the Federal Republic of Germany – can be understood to be generally tenable under public international law and consequently, the view that the adherence of the United States to international humanitarian law as such is not itself called into question as untenable under public international law. Therefore, the view taken by the Federal Government is within the broad margin of appreciation afforded to it with regard to foreign affairs and security policy.

149

(2) A genuine concern of systematic violations of international humanitarian law and the right to life can also not be sufficiently clearly inferred from critical reports about the operational procedures of the United States in deploying armed drones or the statements of international organisations, including the reports of the UN Special Rapporteurs […] adduced by the complainants or the resolutions of the Human Rights Council, the European Parliament and the Parliamentary Assembly of the Council of Europe […].

150

The (high) number of civilian casualties cannot on its own – without considering further elements – give rise to a serious risk of systematic violations of the public international law applicable in the case at hand. As long as there are no tangible indications pointing to a violation of the principle of distinction, the principle of precaution or the prohibition of excessiveness, the fact that protected civilians are killed when armed drones are deployed in non-international armed conflicts is not in and of itself sufficiently indicative of such deployments happening in violation of public international law. Whether the number of civilians killed constitutes a proportionate response in regard to the combatting of legitimate military targets intended from an ex ante perspective cannot be determined without further information, thus rendering it impossible to assess whether there is, for example, a violation of the prohibition of excessiveness. Sufficient indications that there has been a systematic violation of the prohibition of excessiveness in Yemen cannot be found in the aforementioned reports and resolutions.

151

In expressing concern regarding the observance of the provisions of international humanitarian law, the reports essentially rely on and criticise a discrepancy between the ICRC and the United States regarding the criteria to distinguish legitimate military targets from protected civilians and a lack of transparency concerning those criteria. However, it cannot be deduced with sufficient certainty from the differing legal views, which are in each case tenable under public international law, that systematic violations of international humanitarian law are not only a possibility, but rather a genuine concern.

152

(3) A serious risk of a systematic violation of international humanitarian law and of the right to life is also not ascertainable on the basis of an overall assessment. It is true that the deployment of armed drones for the purpose of targeted killings have raised international criticism (see a) below). Yet, it cannot be assumed that such a danger exists and thus that the general mandate to protect under Art. 2(2) first sentence of the Basic Law has given rise to a specific duty to protect vis-á-vis the complainants regardless of the arguments made in this respect (see b) below).

153

(a) The deployment of armed drones for the purpose of so-called targeted killings is the subject of intense debate, both internationally and within the United States (cf. supra paras. 14 ff.; [...]). Criticism is directed against the broad interpretation of international humanitarian law and of the right to self-defence employed by the United States ([...]). This broad interpretation relates to the geographical extent of the area of the armed conflict and, consequently, the scope of applicability of international humanitarian law, the determination of who qualifies as a legitimate military target, and the deployment of drones even outside of specific combat situations. Such an extensive interpretation may lead to an increase of the number of legitimate military targets and thereby of the danger for civilians in a specific area to be injured or killed in the course of the deployment of armed drones as so-called civilian collateral damage. Furthermore, so-called ‘signature strikes’ in particular have been the subject of criticism ([...]). There is no imperative requiring that the identity of a legitimate military target be known. Rather, the legitimacy of such deployments depends on specific signatures. However, Professor Oeter pointed out the risk of cognitive dissonance and cultural misconceptions with regard to the classification of patterns giving rise to suspected targetable activity during the oral hearing.

154

With regard to the deployment of armed drones by the United States, the lack of transparency with regard to specific rules of engagement and the question of how it is determined which group of individuals may be made the object of attack as legitimate military targets was criticised particularly during the initial years of the conflict […]. In the meantime, the United States has published legal policies and rules of engagement, albeit partially redacted (cf. supra para. 9). Some operations in the past may have given rise to the question of how and to what extent the United States has adhered to the self-proclaimed standards that attacks may not be executed if the near certainty standard with regard to the possibility of civilian casualties is not met – a standard which the United States did not regard to follow from a legal obligation. Furthermore, there are considerable discrepancies concerning the numbers of casualties between U.S. authorities and non-governmental organisations (cf. supra para. 4). The Senate is also not oblivious to the fact that the complainants were unable to obtain legal protection before the courts of the United States due to the ‘political question’-doctrine (cf. United States District Court for the District of Columbia, Ahmed Salem Bin Ali Jaber et al. v. The United States of America et al., Decision of 22 June 2016, No. 15-0840 <ESH>, p. 15; United States Court of Appeals for the District of Columbia Circuit, Ahmed Salem Bin Ali Jaber et al. v. United States of America et al., Decision of 30 June 2017, No. 16-5093, p. 16; U.S. Supreme Court, Certiorari – Denied, Decision of 27 November 2017, No. 17-472, p. 3). Finally, international criticism raised against the deployment of armed drones by the United States has led to the Federal Republic of Germany being requested by the Human Rights Committee to conduct an investigation into the involvement of the U.S. military base in Ramstein and to take steps to ensure compliance with international humanitarian law (cf. ICCPR Human Rights Committee, Concluding observations on the seventh periodic report of Germany, UN Doc. CCPR/C/DEU/CO/7, 30 November 2021, p. 6 para. 22).

155

(b) Even when considered together, these points of criticism are not sufficient to give rise to a serious risk of a systematic violation of international humanitarian law and the right to life of the complainants in Yemen. The general mandate of protection therefore does not give rise to a specific duty of protection vis-á-vis the complainants.

156

Even if the aforementioned points of criticism increase the risk of a violation of the rules for the protection of the right to life stipulated by public international law, this does not justify the prognosis that such violations are committed systematically. The details of the interpretation concerning the scope of the joint obligations under public international law may differ between the Federal Republic of Germany and the United States. This does, however, not impact the trust in the legitimacy of the acts of the other state generally afforded between allied states, as long as the legal view of the United States, which differs from that of the Federal Republic of Germany, stays within the limits of what is tenable under public international law. This is the case here (cf. paras. 143 ff.).

157

A serious risk of a systematic violation of international humanitarian law is also not justified by the fact that the United States has assumed that the rebuttable presumption in Art. 50 of Additional Protocol I, according to which a person shall be considered to be a civilian in case of doubt, does not have a basis in customary international law ([…]; for a different view see ICTY <Appeals Chamber>, Prosecutor v. Tihomir Blaškić, Judgment of 29 July 2004, IT-95-14-A, §§ 110 f.; […]). Even in spite of the assumption that there was no binding legal effect, this does not allow for the conclusion that the United States did not apply the presumption in practice. The specific operational principles support this ([...]). Furthermore, the current edition of the U.S. Law of War Manual no longer contains the previously expressed legal view but rather indicates that individuals are, as a starting point, to be considered civilians ([...]).

158

Lastly, it must be taken into account that the United States, regardless of its more expansive legal view regarding its authority to act, has – at least for reasons of political opportunism – self-imposed limitations on its operational procedures. Thus, the United States’ endeavours to avoid civilian casualties, improve the protection of the civilian population and increase the transparency of the operations have expanded during the period in which armed drones have been deployed (cf. supra paras. 8 ff.). Ultimately, even in an overall assessment of the points of criticism raised by the complainants against the deployment of armed drones by the United States in Yemen (and elsewhere), a serious risk of systematic violations of international humanitarian law and the right to life of the complainants cannot be found.

159

c) Since the requirements for the existence of an extraterritorial duty of protection are not fulfilled, the question whether the Federal Government could have satisfied such a duty vis-á-vis the complainants, had it existed, by obtaining an assurance from the United States that any activities in military facilities on German territory were within the confines of applicable law and by communication with U.S. authorities through diplomatic channels need not be decided.

III.

160

The reasons for not finding the existence of an extraterritorial duty of protection also preclude a violation of the complainants’ right to effective legal protection under Art. 19(4) first sentence of the Basic Law. To the extent that they seek to justify such a violation by claiming that the Federal Administrative Court granted too broad a margin of appreciation with regard to the legal situation in public international law to the Federal Government, this argument does not hold. Because the legal view taken by the Federal Government that the actions of the United States were within the limits of what is tenable in public international law was ultimately justified, it has proven to be tenable itself (cf. supra para. 148).

D.

161

The decision on the reimbursement of the necessary expenses is based on § 34a(3) of the Federal Constitutional Court Act. Although the constitutional complaint must be rejected, the decision has yielded clarification regarding the constitutional requirement of an extraterritorial duty of protection in case of the actions of a foreign state (cf. BVerfGE 84, 90 <132>; 109, 190 <243 f.>; 141, 56 <81 para. 65>; 149, 50 <85 para. 96>). In view of the aforementioned, it is within the Court’s equitable discretion to order the reimbursement of half of the expenses.