Court: Administrative Court of Cologne (Germany)

Type of decision: Judgment

Date judgment: 27 April 2016

Case no.: 4 K 5467/15

Area of jurisdiction: Administrative law

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Claim: Plaintiff demands investigations into the death of his father and seeks justice.

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Principle legal argument(s): The Federal Republic of Germany has

a) violated its   constitutional obligation to protect the right to life (“Schutzpflicht”); and

b) failed to comply with its obligations under the NATO Status of Forces Agreement and its supplementary agreements, to ensure that the use of US military bases on German territory does not constitute a danger to life.

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Type of reparation sought: Declaratory relief holding that the defendant infringed its fundamental obligations to protect the right to life, in particular by failing to comply with its obligations under the NATO Status of Forces Agreement and its supplementary agreements, to ensure that the use of US military bases on German territory does not constitute a danger to life.

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The lawsuit of a Somalian whose father died in 2012 during a US air strike, allegedly carried out by unmanned combat drones, is inadmissible. With this decision the Administrative Court of Cologne dismissed the action against the Federal Republic of Germany.

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According to the plaintiff, his father has been killed while herding his cattle on February 24, 2012 through an US air attack on the terrorist organization Al-Shabaab, active in south-east Somalia. US drone strikes in Africa were supported in particular by the Ramstein Air Base in Germany. In this Feststellungsklage (a request for a declaratory relief) the plaintiff asked the court to declare that the Federal Republic of Germany had violated its “Schutzpflicht” under Article 2(2) of the Federal Republic’s constitutional law entailing the State’s obligation to protect the right to life and physical integrity. In addition, the plaintiff claims that the defendant failed to comply with its obligations under the NATO Status of Forces Agreement and its supplementary agreements, to ensure that the use of US military bases on German territory does not constitute a danger to life and physical integrity [para. 9].

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The Administrative Court of Cologne ruled that plaintiff did not meet the prerequisites for a declaratory judgment and declared the claim inadmissible [para. 26]. According to the relevant legal provision at hand, legal action may be taken to establish the existence or non-existence of a legal relationship or the annulment of an administrative act, if the plaintiff has a legitimate interest in establishing this finding [para. 27]. According to the court, plaintiff lacks a legal relationship as well as a legitimate interest [paras. 26-28].

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Absence of legal relationship

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Pursuant to relevant German law, a legal relationship is to be understood as the legal relations arising from a concrete fact, based on a public law standard for the relationship between natural or legal persons or between a person and a property [para. 31]. The court underlines the need to consolidate the legal relationship to a concrete legal relationship which is justified by the need prevent situations where the plaintiff seeks protection of third-parties interests. In addition, the claims must concern concrete disputes, rather than on merely hypothetical ones [para. 33].

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The court finds that plaintiff does not wish to establish his own current legal relations with the defendant, but a past legal relationship between the defendant and his father [para. 36]. The court adds that also third-party relations–as is the case here between the father of the plaintiff at one hand and defendant on the other) do not preclude the possibility to file a claim as long as the remaining legal requirements (e.g. legitimate interest) are met [para. 38].

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According to the court, plaintiff does not base the legal relationship with defendant on the assertion that the US drone strikes in Somalia that killed his father, is attributable to the Federal Republic of Germany, but rather criticizes the defendant for not having used its options to prevent the alleged unlawful military operations in Somalia being carried out by the US military bases on German territory. Concretely, plaintiff seeks clarification on the scope of the Federal Republic’s rights and duties to control the use of US bases on its territory in Stuttgart (headquarters of the US Africa Command – AFRICOM) and Ramstein (Air Operations Center – AOC). It is the courts finding that, de facto, plaintiff requests a legal assessment of the activities of the United States of America and the Federal Republic of Germany, a request that essentially centers on the legal qualification of the alleged activities as unlawful or lawful. Such a legal qualification however, is not a legal relationship as is required for a case to be admissible [para. 40].

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Plaintiff lacks legal standing

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Apart from legal relationship it must also be established that the concern is on the realization of plaintiff’s own, subjective rights [para. 51]. No legal standing exists in situations where the asserted legal relationship cannot infringe a plaintiff’s subjective rights [para. 59] as is the case here. In so far as plaintiff claims that defendant has violated its “Schutzpflicht”, the court concludes that plaintiff’s legal standing cannot be derived from the killing of his father but requires plaintiff’s assertion of being infringed in his subjective rights [para. 65]. The court excludes that the defendant has infringed or is infringing plaintiff’s subjective rights reasoning that the Federal German Republic did not violate the rights of Somali citizen since it did not carry out the drone attacks (that were undertaken by the USA) [para. 78]. Neither can the drone strikes be attributed to the Federal Republic of Germany because data infrastructure and satellite-based communication channels do not per se and always lead to unlawful action [para. 103]. And lastly, the court decides that defendant’s alleged failure to comply with its obligations under the NATO Status of Forces Agreement and its supplementary agreements to ensure that the use of US military bases on German territory did not directly infringe plaintiff’s subjective rights [para. 109].

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‍Plaintiff lacks legitimate interest in legal assessment of the case

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For a legitimate interest to be established under relevant German law, in principle any accepted legitimate, legal, economic or ideological interest with sufficient weight to improve the position of the person seeking relief, is required [para. 114].

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The court elaborates on the fact that the existence of a (third) legal relationship in the past, requires special conditions (risk of repetition – persistence of discrimination – sustainable, grave breach of civil liberties rights – liability claim/claim for compensation) to establish a legitimate interest and concludes that these are not given here [paras. 114-118, 123].

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Furthermore, again the court determines that there is no infringement of plaintiff’s subjective rights -a prerequisite for legitimate interest [para. 130]. Plaintiff relies on the killing of his father and the defendant’s failure to withhold the US military from drone strikes in Somalia, cannot lead directly to infringements of the rights of the plaintiffs [para. 135]. Regarding plaintiffs request for a determination of the scope of defendant’s obligations under the NATO Status of Forces Agreement and its supplementary agreements, the court finds no legitimate interest either reasoning that “a mere ideal interest in the clarification of the question of the legality or illegality of disputed State action cannot give grounds for a legitimate interest”. Lastly, the court rules that it is acknowledged that (international) governmental action or military command acts are regularly deprived of the judicial control [para. 132].

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The court dismissed the case on admissibility grounds. The plaintiff appealed this deccision before the Higher Administrative Court of Appeal that confirmed the inadmissibility of the case in 2019.