Ramstein – Deployment of drones
In a judgment pronounced today, the Second Senate of the Federal Constitutional Court rejected a constitutional complaint lodged by two Yemeni citizens. The constitutional complaint concerns the question of whether the Federal Republic of Germany has violated a duty of protection that may have existed vis-á-vis the complainants with regard to the deployment of armed drones in the Republic of Yemen by the United States of America (United States) using technical facilities located at Ramstein Air Base.
In its judgment, the Senate explains that the Federal Republic of Germany has a general mandate of protection which encompasses safeguarding fundamental human rights and the core principles of international humanitarian law, including in cases which also involve foreign countries. Under certain conditions, this general mandate may give rise to a specific duty of protection. However, in order for such a duty of protection to arise, two requirements must be met: Firstly, there must be a sufficient link to the sovereign powers of the Federal Republic of Germany which establishes the necessary nexus of responsibility and, secondly, there must be a serious risk of a systematic violation of applicable public international law.
Measured against these standards, the constitutional complaint is not well-founded. The question of whether the required overall assessment of the deployment of drones by the United States of America in Yemen challenged in this case would have given rise to a fundamental rights responsibility on the part of the Federal Republic of Germany did not need to be decided. This is because the Senate, based on the facts determined by the ordinary courts, did not find a serious risk of a systematic violation of applicable public international law.
Facts of the case:
Ramstein Air Base is a military airfield in Rhineland-Palatinate used by the US armed forces. In April 2010 and November 2011, the Federal Ministry of Defence was informed by the US armed forces of the planned construction of a satellite relay station on the premises of Ramstein Air Base that was to be used for the operation of, among others, armed drones in foreign countries. The Federal Ministry of Defence did not raise any objections to this construction project in the Direct Procedure (Truppenbauverfahren). The complainants are Yemeni citizens whose close relatives were killed by a US drone strike in their home town in Yemen in August 2012. In 2014, they filed an action before the Cologne Administrative Court, requesting 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 armed drones within the territory of Yemen. The Cologne Administrative Court dismissed the complainants’ action. However, they were partly successful with their appeal on points of fact and law before the Higher Administrative Court; that 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 armed drones by the United States in the territory of Yemen takes place in accordance with public international law. Following the appeal on points of law initiated by the Federal Republic of Germany, the Federal Administrative Court 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.
With their constitutional complaint, the complainants challenge the decisions of the Cologne Administrative Court and of the Federal Administrative Court. In particular, they assert a violation of their right to life and freedom from physical harm under Art. 2(2) first sentence of the Basic Law (Grundgesetz – GG). They contend that the Federal Republic of Germany violated its duty of protection existing in this regard and assert that it also applies to foreign citizens living abroad.
Key considerations of the Senate:
The constitutional complaint is admissible, but not well-founded.
I. 1. The Federal Republic of Germany has a general mandate of protection which encompasses safeguarding fundamental human rights and the core principles of international humanitarian law, including in cases which also involve foreign countries. This follows from the Basic Law’s openness towards international law in conjunction with Art. 1(2) of the Basic Law. Under certain circumstances, the German state may also be obliged to invoke public international law within its own area of responsibility if public international law is violated by foreign states.
2. 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 which is based on the observance of applicable public international law and the protection of life under Art. 2(2) first sentence of the Basic Law.
a) Under Art. 1(3) of the Basic Law, the German sovereign powers are comprehensively bound by the fundamental rights of the Basic Law, which is not limited in scope to German territory. This is because 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.
In cases with implications for international relations, constitutional law must be reconciled with public international law. When Art. 2(2) first sentence of the Basic Law is the basis for a duty of protection in the case at hand, 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 international human rights, particularly the right to life.
b) When this duty relates to the observance of the provisions of public international law that pertain to the right to life, it also encompasses dangers originating from actors that are not bound by the fundamental rights of the Basic Law. In principle, this also includes dangers originating from foreign states.
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. The principle of the openness towards international law as a constitutional decision to advance international cooperation built on respect for and the promotion of public international law and the aspiration towards a comprehensive fundamental rights protection centred around the human individual 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.
d) An extraterritorial duty of protection can nevertheless only exist under special circumstances. The first requirement is a sufficient link between the danger prompting the need for protection and the sovereign powers of the Federal Republic of Germany.
The question of whether a sufficient link exists must be answered through an overall assessment that takes into account the specifics of the individual case. 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. Facilitating an action by a foreign state that threatens fundamental rights, whether by an act, omission or acquiescence on the part of German public authorities, may also be relevant to fundamental rights protection. 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 of some significance with regard to the actions of a foreign state that give rise to the danger beyond mere factual causation is needed in order to establish a sufficient link to German state authority that is bound by the Basic Law. In this context, the severity of the violation of public international law in question may be taken into consideration.
e) An additional requirement for the general mandate of protection to give rise to a specific extraterritorial duty of protection pertaining to the actions of a foreign state is that there must be a serious risk of a systematic violation of the rules of international humanitarian law and international human rights which serve the protection of life. This does not require that a systematic violation of public international law has already taken place; however, there must be substantial indications that such violations are not only a possibility, but rather a genuine concern.
When the conduct of a foreign state possibly constitutes a violation of public international law, the fact that the Basic Law binds the Federal Republic of Germany to the international community and commits German state authority to international cooperation must also be taken into consideration. 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. 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.
Thus, there must be substantial indications that the danger of an allied nation violating international humanitarian law and human rights exists not only in individual cases, but rather systematically.
f) When assessing whether the actions of a foreign country 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 it proves to be tenable.
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. 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. 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. 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.
g) The aforementioned standards take into account the Federal Republic of Germany’s duties under public international law. This is because, according to the case-law of the International Court of Justice, every state party to the Geneva Conventions is obliged to ensure adherence to the requirements of the respective treaties, regardless of whether that state is itself party to a specific armed conflict.
II. Measured against these standards, a violation of the complainants’ fundamental rights by the challenged decisions ultimately cannot be found.
1. An argument can be made that the involvement of Ramstein Air Base in the deployment of armed drones in Yemen by the United States of America serves to establish a sufficient link to German sovereign powers, which is a requirement for the existence of a duty of protection. The findings made by the ordinary courts suggest that a sufficient link exists. By constructing the satellite relay station, an infrastructure was developed that specifically serves to deploy armed drones. The Federal Government was aware of this fact. 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. Conversely, an argument against a sufficient link, in that the mere technical provision of a data and communications link between the drone and the operations and control centres in the United States is, from a normative standpoint, neutral, and, in an overall assessment, of only subsidiary importance, could also be made.
2. The question of whether the required overall assessment with regard to the deployment of drones by the United States in Yemen challenged in this case would have given rise to a fundamental rights responsibility on the part of the Federal Republic of Germany need ultimately not be decided. Based on the findings made by the ordinary courts, a serious risk of a systematic violation of the public international law rules for the protection of life, 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.
a) The legal view of the United States, on which it bases the deployment of armed drones in Yemen is, in and of itself, not suited to provide substantial indications that a serious risk of systematic violations of international humanitarian law exists.
aa) 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. This distinction is subject to intense debate.
(1) 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 in hostilities, but also beyond that period.
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. 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.
The International Committee of the Red Cross (ICRC) applies a functional definition; members of an armed group are those individuals whose continuous function it is to directly participate in hostilities. The legal concept of the continuous combat function requires a lasting integration into an organised armed group. 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.
(2) 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 mean that the approach taken by the United States must be seen as being untenable. The Interpretive Guidance of the ICRC does not bind the states party to the Geneva Conventions. 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. The different, partly contradictory opinions in legal scholarship and the statements of the legal experts submitted during the proceedings 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.
bb) A serious risk of a systematic violation of the right to life under the International Covenant on Civil and Political Rights also does not follow from the fact that the United States 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, it cannot be established that the application of this legal view has had an effect on the operational practice in the case at hand.
cc) Thus, the view taken by the Federal Government is 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; consequently, the view that the adherence of the United States to international humanitarian law as such is not drawn into question is itself tenable under public international law. Therefore, the view taken by the Federal Government is within the broad margin of assessment afforded to it with regard to foreign affairs and security policy.
b) 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 practice 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. 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. Sufficient indications that there has been a systematic violation of the prohibition of excessive collateral damage in Yemen cannot be found in the aforementioned reports and resolutions.
c) 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.
aa) 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. Among other aspects, 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 thus 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. In particular, 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 an attack as legitimate military targets was criticised during the initial years of the conflict. In the meantime, the United States has published legal policies and rules of engagement, albeit partially redacted.
bb) 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. Thus, the general mandate of protection does not give rise to a specific duty of protection vis-á-vis the complainants.
Even if the aforementioned points of criticism might indicate an increased risk of a violation of the rules for the protection of the right to life stipulated by public international law, this does not support the prognosis that such violations are committed systematically. While the details of the interpretation concerning the scope of the common obligations under public international law of the Federal Republic of Germany and the United States may differ, this does not affect 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.
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 improved during the period in which armed drones have been deployed.
3. 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 US-authorities through diplomatic channels need not be decided.