Federal Constitutional Court: Ramstein and US drone – court sees no obligation to protect

In individual cases, Germany can also be obliged to protect human rights and international law for foreigners abroad. In the case of drone attacks in the United States, which are technically controlled via the Air Base Ramstein in the Palatinate, this is not the case from the perspective of the Federal Constitutional Court. The highest German court in Karlsruhe rejected a constitutional complaint of two Yemeniten. (Az. 2 BvR 508/21)

Conditions for Germany’s intervention

With the judgment, however, the second Senate goes beyond the previous case law of the Constitutional Court, as the presiding judge Doris König said. He places two conditions for the fact that a general protection mandate becomes a concrete obligation to protect.

On the one hand, there must be a sufficient connection to the state authority of the Federal Republic, explained König. Second, there must be a serious risk of systematic violation of applicable international law. This must be checked for the individual case.

The assessment of the federal government responsible for foreign and security policy plays an important role in the judgment. Also, an obligation to protect against people living abroad does not have to have the same content as to people in Germany.

Department of Defense and the Federal Foreign Office rated this as proof that the Federal Government had a wide range of assessment when it comes to the international law conformity of the activity of third countries. The Parliamentary State Secretary in the Ministry of Defense, Nils Schmid (SPD), spoke of “legroom of the federal government in cooperation with alliance partners in foreign and security policy”.

Fatal attack in Yemen

In the specific case, it was about the constitutional complaint of two Yemeni nationals because of the US drone missions. The German judiciary has been employing its case for more than ten years.

In August 2012, two men in Yemen died through a US drone attack. They were killed at a meeting with three alleged members of the terrorist organization Al Qaeda. According to the complainants, those killed were a police officer and a clergyman who had preached against Al Qaeda in the region.

Her relatives have complained in Germany in Germany since 2014 and recently filed a complaint in Karlsruhe. They referred to the right to life and physical integrity stipulated in the Basic Law and also see the federal government in responsibility because the Ramstein military base in Rhineland-Palatinate plays an important role.

The American armed forces informed the Ministry of Defense in 2010 that a satellite relay station for control was built on the premises in Ramstein, even weapon-capable drones abroad. Because of the earth curvature, drones above Yemen cannot be controlled directly from the USA. According to the court, the ministry saw no concerns.

Courts in Germany decide differently: The Higher Administrative Court of Münster sentenced the Federal Republic of 2019 to actively investigate whether the United States drone operations in Yemen, using the military base, violating international law. The Federal Administrative Court received this decision the following year.

It was not enough for him that Ramstein was technically important for the US drone program. The Federal Administrative Court argued that concrete decisions would have to take place on German soil so that Germany’s fundamental rights would also apply to foreigners abroad.

Karlsruhe deny systematic danger

During their examination, the constitutional judges now came to the conclusion that there was no serious risk of a systematic violation of international law rules to protect life – which would be a prerequisite for a concrete obligation to protect. “In particular, it could not be determined that the United States in the non -international conflict in Yemen will apply unacceptable criteria to delimit legitimate military goals of protected civilians,” said judge König.

Because this requirement is not met, the Senate left open whether the connection to German state power is sufficient due to the technology used in Ramstein. According to the statements, there are arguments for this and against it.

The plaintiff: “judgment is dangerous and shocking”

The Ministry of Defense had already declared the negotiation in December that there was a “continuous and trusting dialogue” with the USA to use the Air Base. It was repeatedly assured that “operations from unmanned aircraft from Germany do not start, controlled or commanded and that the US forces comply with their activities”.

From the plaintiff’s point of view, this is not enough. “Without Ramstein, the number of drones could not take place in the number,” said Andreas Schüller from the European Center for Constitutional and Human Rights (ECCHR), which supports the complainants. After the announcement of the judgment, he said: “It does not lead to a recognition of the injustice that they have suffered.”

The plaintiffs Ahmed and Khaled Bin Ali Jaber said, according to a message from the ECCHR: “This judgment is dangerous and shocking: it conveys the message that states who support the US drone program do not bear any responsibility if civilians are killed.”