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2015 | FEDERAL REPUBLIC OF GERMANY Administrative Court of Cologne, Faisal bin Ali et al v. Federal Republic of Germany, Case no. Az. 3 K 5625/14, 27 May 2015

Court

Administrative Court of Cologne (Germany)

Type   of decision

Judgment

Date judgment

27 May 2015

Case no.

Az. 3 K 5625/14

Area of jurisdiction

Administrative law

Claim

Facilitating the use of Ramstein Air Base is inconsistent with German constitutional law and international law.

Principle legal argument(s)

Plaintiffs purport they are constitutional rights holders under Article 2(2) of the German constitution obliging the Federal Government to protect the(ir) fundamental right to life and the(ir) right to physical integrity (“Schutzpflicht”).

Type   of reparation sought

  • The German government must stop the use of Ramstein Air Base in assisting the US’ covert drones program;
  • The German government must acknowledge that allowing the US to use Ramstein to facilitate drone strikes in Yemen is unlawful.

Mr bin Ali Jaber and others -the plaintiffs- are Yemenite nationals from the Hadramout region in the east of Yemen. They lost relatives (uncle and brother-in-law) during a drone attack on August 29, 2012 in the village of Khashamir and are afraid to become victims of future drone strikes. Plaintiffs have filed litigation asking the German government to a) stop the use of Ramstein Air Base in assisting the US’ covert drones program (para. 13] and b) acknowledge that allowing the US to use Ramstein to facilitate drone strikes in Yemen – a country with which the US is not at war – is unlawful [para. 15].

Plaintiffs claim to be constitutional rights holders under Art 2 (2) of the German constitution obliging the Federal Government to protect the(ir) fundamental right to life and the(ir) right to physical integrity (“Schutzpflicht”). They assert that even as foreigners living abroad, they can invoke this right since Article 1(3) of the German constitution entails a territorial application of fundamental rights and the required territoriality emerges from the unlawful use of the Ramstein Air Base, which the Federal government should stop [para. 11].

Also plaintiffs assert that, in absence of an armed conflict, international humanitarian law does not apply and thus the drone strikes from German territory are unlawful. The Federal Government should stop this unlawful use of by invoking its rights and duties under the NATO treaties on the stationing of friendly forces in the Federal territory [para. 11].

Defendants moved to dismiss arguing inter alia that plaintiffs lack both a legitimate interest and legal standing. Furthermore, they put forward that the deployed activities at Ramstein Air Base respect applicable law and that the NATO treaties on the stationing of friendly forces in the Federal territory impede Germany from checking certain activities [para. 18].

The court finds the complaint admissible and grants plaintiff legal standing [paras. 22-23]. It allows plaintiffs to claim that defendant violated its “Schutzpflicht” reasoning that the State’s obligation to protect the right to life is generally accepted and entails the right of an individual to file a claim [paras. 29, 31]. Also the defendant’s “Schutzpflicht” does not a priori preclude its invocation by a foreigner living abroad [para. 33]. Determining the extraterritorial scope of the “Schutzpflicht”, the court holds that the Federal Government’s is held to protect persons or goods against Germany’s actions abroad [paras. 39-41]. At the same time however, the court finds that it is unclear how far the obligation extends if it leads to unacceptable consequences. Not to forget that the extent to which the defendant can offer specific protection abroad, is often limited by international conditions and agreements [para. 42]. The court concludes that the German Federal Republic enjoys considerable leeway in its duty to protect the right to life and that plaintiffs are not entitled to a specific act of protection [para. 50]. Accordingly, the Federal Government’s manoeuvre to act encompasses the assessment of drone attacks under international law and can only be checked on a limited basis for reasons of separation of powers [paras. 60-62, 68, 81, 85]. Furthermore, the court finds an international armed conflict in Yemen to exist and concludes that the unintended killing of civilians as a result of a drone strike is not a violation of international humanitarian law, as long as the attack are undertaken with respect for principles of distinction and military necessity [paras. 87-88].

With respect to plaintiffs’ argument that NATO treaties on the stationing of friendly forces in the Federal territory provide a basis for the Federal Government to stop the unlawful use of Ramstein, the court determines that in its present version, the cited NATO treaties only provide for a very limited possibility for German authorities to review the activities of foreign forces on its territory [paras. 95-97]. An intervention against the alleged unlawful use of the Air Base Ramstein is therefore excluded.

In conclusion, neither German constitutional law nor international law obliges the Federal Government to prohibit the USA from using the Ramstein military station for drone attacks. The court allowed the plaintiffs to appeal given the case’s fundamental importance (“Die Berufung ist… zuzulassen, da die Rechtssache grundsätzliche Bedeutung hat” [para. 105]. The appeal to the Higher Administrative Court is currently pending and legal arguments have been exchanged between the parties. An oral hearing before the court is envisaged for 2017.

This case is remarkable because it was the first time that a court in a country lending military or technical support for the US drone program, allowed such a case to be heard.