Q&A Germany's Role in the US drone warfare

Why the lawsuit?

The use of armed drones is more than an aggravated means of warfare. Through the drone war, the US is repeatedly violating international law and human rights. Many of the drone attacks take place outside of armed conflicts. Therefore, the attacks are not covered by international humanitarian law – this is also the case in Yemen, where the US is employing means of war in the context of their global fight against international terrorism. In Yemen the US carries out targeted killings of people whom they suspect of terrorism. This frequently leads to mistakes, which results in the deaths of innocent bystanders. There is no legal basis that justifies the killing of innocent parties and the violation of the right to life.
 
No one has, so far, been able to put a stop to the illegal US drone attacks. On the contrary: Germany is supporting the drone war through the exchange of information and through comprehensive usage rights for the US military bases. The US military basis Ramstein in Rhineland-Palatinate plays a central role in the drone war: all relevant data for the combat drones passes through Ramstein.
   
Germany is violating its constitutional and human rights obligation to protect because it has, thus far, not taken appropriate measures to prevent the US from using its bases and facilities on German territory for drone attacks. The German government must put a halt to the use of Ramstein for drone attacks – otherwise it is complicit in the death of innocent civilians.

What are the plaintiffs expecting from this case?

The Bin Ali Jaber family has suffered a deep personal loss. But not only that: to this day they and many other Yemenis are living in constant fear of further drone attacks. The goal is to end the murderous violations against international law that are the US drone attacks on Yemen.
 
The Bin Ali Jaber family is calling on Germany to take legal and political responsibility for the US drone war in Yemen and to prohibit the use of Ramstein.
 
Faisal Bin Ali Jaber and his relatives have already achieved one goal with their lawsuit: For the first time, the victims of drone attacks are exercising their right to be heard in Germany. No matter how the trial continues: the lawsuit by these three Yemenis is contributing to the overdue political debate over Germany’s role in the US drone war.
 
The plaintiffs are aware that it may take several years of proceedings before a final judgment is handed down.

What are the plaintiffs demanding?

Germany must no longer support the US drone war. The German government must prevent the use of Ramstein for drone attacks, especially the attacks on their village and homelands in Yemen.

Legally, what shared responsibility does Germany have for the US drone war?

Several documents and witness statements prove that the US military base Ramstein, and thereby German territory, is playing a central role in the US drone war. Therefore, by not preventing the use of Ramstein, the German government bears co-responsibility for the use of drones that constitutes a violation of international law.
 
The transfer of data that is used for the technical command of the drones occurs via Ramstein. First fiber optic cables route the data from the US, where the drone pilots are sitting, to Ramstein.  From there, it travels via satellite to the drones in the relevant operational area. Similarly, data coming from the drones, such as the real-time surveillance photographs, is routed back to the operations teams. The curvature of the earth means it is not possible to establish a direct connection between the US and the drones in the operational area. The only US satellite relay station within the range of the operational areas is in Ramstein: therefore, drone attacks are currently not possible without the use of Ramstein.

What is the legal assessment of the drone attacks?

First, one has to differentiate between attacks that are taking place in an armed conflict, like for example in Afghanistan, and those that take place outside such a conflict, like in Yemen in the context of anti-terrorism operations.
 
Many of the US drone attacks are taking place in areas in which the US is not participating in an armed conflict. This is also evidenced by the fact that the CIA, rather than the US Army, is responsible for attacks in regions such as Yemen. In conflict zones, like Iraq or Afghanistan, the military is responsible for the use of drones.
 
Outside of armed conflicts – as is the case in Yemen – targeted killings using drones are legally categorized as murder, for which there are no legal justifications. Under human rights law, the drone strikes represent a violation of the affected individuals’ right to life, among others.
 
Even in armed conflicts, attacks may only be directed at people who are actively participating in the hostilities. Not every member of a conflict party may per se be killed. The US is disregarding this principle of international humanitarian law. In its politics and in practice, the US defines much larger groups of people as legitimate military targets.
 
The fundamental rule under international humanitarian law is to protect civilians under all circumstances.

What is at issue in the lawsuit?

The plaintiffs are suing Germany under administrative law. In a legal action for performance, they are demanding that Germany abide by its constitutional responsibility to protect their right to life under Article 2 of the German Basic Law, or constitution (Grundgesetz – “GG”). The plaintiffs are protected by the German Basic Law because they are directly suffering from the fact that Germany is actively allowing the use of Ramstein and is not preventing the unlawful actions there.

What is the basis of the claim?

The plaintiffs base their claim against Germany on the right to life and physical integrity. Article 2 and 25 of the Basic Law require that the German government prevent violations of international law on German territory (Art. 2 Para. 2 sentence 1 GG; Art. 2 Para. 2 sentence 1 together with Art. 25 GG).

Why was the suite brought before Cologne's administrative court?

The lawsuit is against the German government, which is represented by the German Defense Ministry. The Defense Ministry is based in Bonn, therefore Cologne’s administrative court had jurisdiction over the initial complaint. When this court rejected the complaint in May 2015, the claimants appealed before the Higher Administrative Court for Nordrhein-Westfalen in Münster.

Why did the Cologne Administrative Court reject the complaint?

The Court agreed that the claim was admissible since the German Basic Law obliges Germany to protect the lives of non-Germans abroad where these persons are affected by the actions of German authorities. But the judges, unwilling to adjudicate on foreign policy, granted the German government extremely broad discretion on the matter, effectively freeing the state from any court oversight on this issue.

What happens next?

In August 2015 the three claimants appealed the decision of the Cologne Administrative Court to the Higher Administrative Court for Nordrhein-Westfalen in Münster. The proceedings are ongoing.

What is the basis of the appeal?

The appeal is based in part on the argument that the German government’s discretion is limited by the unlawfulness of US drone strikes in Yemen and the grave danger posed to the claimants by these strikes. Their aim is to establish that Germany is under a legal obligation to take effective measures against the use of the US military base Ramstein for future drone strikes over their home region in Yemen.

Who is representing the plaintiffs?

The lawyer Sönke Hilbrans (dka Rechtsanwälte Fachanwälte) from Berlin is representing Faisal bin Ali Jaber, Ahmed Saeed bin Ali Jaber and Khaled Mohmed bin Ali Jaber and has filed the lawsuit in their name.

What role does ECCHR have in the lawsuit?

Since 2010, the ECCHR has worked on legal questions regarding drone attacks around the world. Together with the international NGO Reprieve, which has been active in Yemen for several years, the drone attacks in Yemen were legally analyzed and the lawsuit that the Bin Ali Jaber family filed in October 2014 before Cologne’s administrative court was prepared.
 
ECCHR staff research the background as well as the liability for drone attacks and analyze the legal context and the possible causes of action. ECCHR has submitted a comprehensive statement on the preliminary criminal proceedings regarding the killing of a German national in Pakistan. Together with an eye witness, they reconstructed the drone attack in a 3D simulation.
 
Furthermore, human rights violations in the global fight against terrorism are an integral part of the ECCHR’s work on the Guantanamo investigative proceedings in Spain and France, as well as on the CIA black sites.

What is the goal of this lawsuit?

Human rights apply universally. The US repeatedly violates fundamental human rights in the context of their global fight against terrorism. In Yemen, no civilians would be killed in drone attacks if Germany prevented the use of German territory for the strikes.
 
The ECCHR uses the law in order to challenge injustice. ECCHR is supporting the administrative suit against Germany by providing research and legal expertise. The goal: the German government must end its support of US activities that violate international law – otherwise it will continue to be complicit in the deaths of innocent civilians.

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  • Pakistan Yemen Ramstein Germany Bin Ali Jaber