2019 | FEDERAL REPUBLIC OF GERMANY Higher Administrative Court of Appeal Nordrhein-Westfalen, Somali plaintiff v. Federal Republic of Germany, Case no. 4 A 1072/16, 19 March 2019
This case, with its many detailed and complex arguments, is interesting as an example of how courts argue for the absence of a State’s responsibility in the case of collateral damage to civilians during strikes against legitimate military targets. In our summary we mention two of the main arguments given by the court, for finding this complaint inadmissible.
A United States’ (US) drone assault on the terrorist organization Al-Shabaab in Somalia on 24 February 2012 killed the plaintiff’s father while he was herding his cattle. The plaintiff –a Somali- instigated a so-called Feststellungsklage (a request for declaratory relief) before the Administrative Court of Cologne, Germany. He asked the court to declare that Germany had breached its constitutional obligation to protect the right to life (Schutzpflicht) by allowing the US to launch armed drone attacks in Somalia, from military bases on German soil. The plaintiff asserts that in particular, Germany should have ensured that the use of these military bases was in compliance with German law, which prohibits violations of international law, and that Germany had failed in its legal obligation to protect the right to life.
On 27 April 2016, the Administrative Court of first instance dismissed the case as inadmissible. The plaintiff appealed this decision, unsuccessfully.
The Higher Administrative Court of Appeal (the Court) confirmed the inadmissibility of the case, finding, firstly, that no concrete legal relationship existed between the plaintiff Somali son of the man killed, nor between the father himself and the defendant State of Germany. (Pursuant to German administrative law, a Feststellungsklage requires such a relationship already to have existed, prior to the request for declaratory relief. Such a relationship is one ensuing from a public law norm). The court stated that a declaration could not be used as a means of clarifying ‘abstract legal questions on the basis of a presumed or merely possible legal relationship’.
A concrete legal relationship between the plaintiff or his father and the defendant could possibly have existed, if it were unequivocally shown that the father had died in the drone attack on 24 February 2012. However the Court found that this fact had not been established with certainty. While it considered the plaintiff’s account of the incident plausible, the quality of the evidence provided was not sufficient to underpin the presumption of the necessary legal relationship.
Moreover, the drone strike was certainly not aimed at any civilian target, but at a legitimate military target, namely a vehicle carrying one or more Al-Shabaab fighters. The basis for a civil complaint was therefore missing. For all these reasons, the court found that the plaintiff had no valid legal interest in the declaration.
Secondly, the Court was not convinced that the German authorities were aware of the use of Ramstein Air base for US drone strikes in Somalia on 24 February 2012 (p. 34). Indeed, the Court considered it questionable whether Ramstein Air base was in fact operational for such actions on this date. They were tasked with setting up a satellite relay station to assist generally in two US operations in Iraq. But the German ministry of Defense claimed not to have been informed of the details of individual actions carried out from Ramstein. Indeed, the court was also not convinced that the relay station was completed and operational at the relevant moment.
The German Administrative Court of Cologne (in 2015) and the Higher Administrative Court of Appeal (in 2019) also delivered judgments in another drone victim case, that of Bin ali Jaber. He pursued his rights in a Leistungsklage (a type of administrative legal proceeding). Contrary to the above case, his case was declared admissible and was decided on the merits.