Federal Constitutional Court: Does Germany share responsibility for US drone attacks?

What responsibility does Germany bear if technical facilities on German soil are used for US drone operations abroad? The Federal Constitutional Court heard this in Karlsruhe – and took a close look at the US Air Force Base Ramstein in the Palatinate. The Karlsruhe judges are not the first to examine the case. The most important background information at a glance:

The Second Senate is considering a constitutional complaint from two Yemeni men whose relatives were killed in a US drone strike in their hometown in 2012. At the Federal Constitutional Court they invoke their right to life and physical integrity enshrined in the Basic Law – and a violation of Germany’s resulting duty to protect. A verdict is not expected for a few months. (Ref. 2 BvR 508/21)

Why is this a case for the German justice system?

The Ramstein military base plays an important role in US drone operations. The complainants therefore see the Federal Republic as having a responsibility: it also has a duty to protect foreigners living abroad. The Yemenis therefore call on the government to take appropriate measures to ensure that the USA adheres to international law.

What is happening in Ramstein?

Ramstein Air Base is an airfield in Rhineland-Palatinate used by the US military. According to the Federal Constitutional Court, the Federal Ministry of Defense was informed by the American armed forces in 2010 that a satellite relay station would be built on the site to control weapon-capable drones abroad. The ministry responded that it saw no concerns.

Ramstein is a “very central element” in the US drone program, explains lawyer Andreas Schüller from the European Center for Constitutional and Human Rights (ECCHR). “All the data to and from the drones goes through Ramstein.” Drone images would also be evaluated there. “There are hundreds of soldiers there who evaluate these images and pass on the relevant information to the pilots in the USA,” said Schüller.

The main issue in Karlsruhe was whether and under what circumstances the German state is obliged to protect the lives of people living abroad without German citizenship. However, the case also raised questions about international humanitarian law and human rights in view of the US drone operations: When does a person lose their protection as a civilian? And when and where can it be attacked?

How did other courts rule?

Before it landed in Karlsruhe, the case had already been dealt with by several German courts in recent years – which had come to different conclusions. Around 2019, the Higher Administrative Court (OVG) in Münster sentenced the Federal Republic to actively investigate whether US drone operations in Yemen using the military base violated international law. However, the Federal Administrative Court reversed the decision the following year.

How did the Federal Administrative Court justify the decision?

The court in Leipzig decided that, in principle, Germany could have a fundamental rights obligation to protect foreigners abroad. But there are prerequisites for this. On the one hand, acts that violate international law must be specifically expected, and on the other hand, there must be a close connection to German national territory. It is not enough that Ramstein is technically important for the US drone program, but that concrete decisions must take place on German soil.

The Federal Government believes that all of its obligations associated with the stationing of foreign armed forces in Germany have been fulfilled. A spokeswoman for the Ministry of Defense said that there is an “ongoing and trusting dialogue” with the USA regarding the use of Ramstein Air Base. “The Federal Government has repeatedly sought assurances that unmanned aircraft operations are in no way launched, controlled or commanded from Germany and that the US armed forces comply with applicable law in their activities.”

Have there been similar cases in Karlsruhe?

At the beginning of the hearing, the presiding judge, Doris König, referred to old decisions of the Federal Constitutional Court, which the Senate could follow. The court had already decided in 2004 that German state organs could be held liable if other states violated international law. And in 2021, the First Senate considered it possible that complainants from Nepal and Bangladesh could have a right to protection from climate impacts caused by greenhouse gases from Germany.

What could the verdict mean?

That depends on how the judges decide in the end. If, as the complainants intend, they order the federal government to take appropriate measures to ensure that the USA complies with international law, there are different stages.

“It starts with a clear legal positioning towards the USA, including a public demand that Ramstein is no longer used in this way,” says Schüller. “This can continue up to the granting of frequencies for satellite use or the dismantling of the satellite station.”