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2019 | FEDERAL REPUBLIC OF GERMANY Higher Administrative Court for the State of North Rhine-Westphalia, Faisal bin Ali Jaber et al v. Federal Government of Germany, Case no. 4 A 1361/15 (VG Köln 3 K 5625/14)

 

Court

Oberverwaltungsgericht für das Land Nordrhein-Westfalen

(Higher Administrative Court for North Rhine-Westphalia)

Type of decision

Judgment

Date judgment

19 March 2019

Case no.

4 A 1361/15 (VG Köln 3 K 5625/14)

Area of jurisdiction

Administrative law

Claim

the USA's use of Ramstein Air Base is in violation of international law

Principle legal argument(s)

Germany has a positive constitutional obligation to protect in cases of foreign threats, plaintiffs fundamental right to life (Schutzpflicht)

Type of reparation sought

Germany must take measures stop the use of Ramstein Airbaise for US armed drones missions in Yemen. Plaintiffs seek a declaration that a failure to take such measures is unlawful.

This case arose out of a United States drone strikes in Yemen in 2012, causing the loss of plaintiffs’ relatives. The plaintiffs are Yemeni citizens, resident in Yemen, who witnessed/survived the lethal drone attacks in their village. Such operations are facilitated by the use of Ramstein Air Base, located in Germany. In this Leistungsklage (an action for injunction) the plaintiffs sue the Federal Republic of Germany in an attempt to prohibit the use of the Air Base in assisting the US drones program and to seek Germany's acknowledgement that allowing the US to use Ramstein to facilitate drone strikes in Yemen is unlawful. Following the Cologne Administrative Court’s rejection of the action, the plaintiffs filed an appeal.

A US court (Columbia) had declined to adjudicate the plaintiffs’ claim that this US drone strike was unlawful, regarding the question as political and therefore non-justiciable. By contrast, the German Higher Administrative Court (the Court) considers that the question of whether armed drone operations in Yemen are permitted by international law is not a political question but a legal one and thus that it is competent to entertain the case. The Court holds that Germany has a positive constitutional obligation to protect, also in cases of foreign threats to the fundamental right to life, if there is a sufficiently close relationship to the German state. That link is provided here by the weighty indications that the US makes use of the Ramstein Air Base in conducting its armed drone operations in the Plaintiffs’ home region in Yemen that have, at least in some cases, breached international law. The Court concludes that Germany is not obliged prohibit the use of Ramstein Air Base for drone operations. However, it holds that the plaintiffs can demand that Germany will assure itself that the US drone operations in the plaintiffs’ home region in Yemen, in so far as facilities in Germany are used, are in accordance with international law. If necessary, Germany must work towards compliance with international law by taking measures that it deems to be suitable.

The Court states that although armed drone attacks are not per se prohibited by international law, they must be conducted in conformity with international humanitarian and human rights law. In case of a non-international armed conflict, such as that ongoing in Yemen, this means that the drone strikes may only be directed against persons who participate directly in the hostilities. Whether an activity or function amounts to direct participation in hostilities requires a case-by-case assessment that takes into account the protection of the civilian population on the one hand and military necessities on the other. The Court notes that, in its ‘war against terror’, the US interprets the theatre of conflict in the broadest terms. The Court acknowledges reliable indications that the US does not consistently make the imperative distinction between those directly participating in hostilities and those who are not. Such attacks may thus amount to arbitrary killings, contravening international human rights law. According to the European Court of Human Rights, the prohibition of arbitrary killing requires that effective official investigations are conducted if persons are killed in particular by the use of armed force by a state. In this case, the Court observes that the German Federal Government has no reliable information as to whether the US authorities have performed adequate investigations in these cases.

The German government decided to present the case to the Germany’s supreme administrative court, the Federal Administrative Court in Leipzig for a final judgment.