By Columbia Journal of Transnational Law, April 17, 2021
On March 23, 2021, two Yemeni men filed a complaint in the German Federal Constitutional Court (the Bundesverfassungsgericht), inaugurating a decision likely to reshape U.S. military presence in Germany and beyond.
With the help of nonprofit organizations, including the European Center for Constitutional and Human Rights (ECCHR) and Reprieve, Ahmed and Khalid bin Ali Jaber (the “Plaintiffs”) have petitioned Germany’s highest constitutional court for declaratory and injunctive relief. They allege that two of their relatives—Salem and Waleed bin Ali Jaber—were killed in a U.S. drone attack on Khashamir, Yemen in August 2012. According to Al-Jazeera, the United States has still not acknowledged the attack.
Given the vast distance between the continental United States and the Middle East and North Africa (“MENA”), the United States requires an intermediate satellite post to operate drones in the region. Germany has answered the call by allowing the United States to use Ramstein, a military base located in the Rhineland Palatinate, to carry out such drone attacks. Because the attack which killed Plaintiffs’ relatives was operated from Ramstein, Plaintiffs have sought relief in German courts.
This most recent appeal stems from a long legal battle seeking to force Germany to declare that these drone attacks are unlawful and to deny the United States access to Ramstein in order to prevent further attacks.
Procedural History and Background
In 2015, Plaintiffs first sought relief in the United States as the country primarily responsible for the 2012 drone attack which killed their family members. Specifically, Plaintiffs sought a declaratory judgment that the attack violated domestic law under the Torture Victim Protection Act (“TVPA”) and the Alien Tort Statute (“ATS”), in addition to breaching international law principles concerning the use of military force. The D.C. District Court dismissed the case on political question grounds, holding that Plaintiffs’ claims were non-justiciable. The D.C. Circuit affirmed, citing the Executive Branch’s exclusive authority over military action. The U.S. Supreme Court denied certiorari in 2017.
Fortunately, Plaintiffs had already initiated simultaneous proceedings in Germany for the country’s role in facilitating U.S. drone strikes out of Ramstein. Plaintiffs first petitioned the Administrative Court of Cologne (the Verwaltungsgericht Köln), making history as “the first time that a court in a country lending military or technical support for the US drone program, allowed such a case to be heard.” Plaintiffs sought an injunction for Germany to stop U.S. use of Ramstein for drone strikes and declaratory recognition that these attacks were unlawful.
Although the court denied both of these remedies as a matter of domestic and international law, it importantly found that Plaintiffs, though foreign, still had legal standing to sue in Germany. In its 2015 decision, the court cited the “right to life” and the “right to physical integrity” (Schutzpflicht) enshrined in Article 2(2) of the German Constitution, also known as the Grundgesetz (GG) or the “Basic Law.” By allowing Plaintiffs’ claims to proceed, the court preliminarily endorsed an extraterritorial application of this constitutional right given Germany’s connection to the lethal air strikes.
Equipped with this right, Plaintiffs then appealed this decision to the North Rhine-Westphalia Higher Administrative Court in Münster (the Oberverwaltungsgericht für das Land Nordrhein-Westfalen). In 2019, this court found that the German government must actively ensure that U.S. activities out of Ramstein comport with international law against arbitrary killings.
Nevertheless, the Federal Administrative Court in Leipzig (the Bundesverwaltungsgericht) overturned this decision in November 2020. It held that Germany’s current relations with the United States sufficed to ensure that U.S. drone strikes out of Ramstein complied with international law. This decision vitiated Plaintiffs’ prior victories, as it gave the United States carte blanche to continue its drone strikes out of Ramstein without German intervention.
The Instant Appeal
These vacillating decisions provide the backdrop for the instant appeal to the Federal Constitutional Court: the supreme constitutional court tasked with interpreting the Basic Law.
On March 23, 2021, Plaintiffs filed a complaint with the court, asserting that: (1) “the court should have obliged the German government to do more to protect the plaintiffs’ right to life” (Schutzpflicht); (2) “that Ramstein’s significance for US drone attacks in Yemen is much greater than the court assumes”; and (3) “that the extent to which US drone attacks violate international law has not been sufficiently assessed.”
Plaintiffs’ claims find considerable support in German constitutional law, in addition to international law. As previously mentioned, Article 2(2) of the Basic Law provides for the right of “every person . . . to life and physical integrity,” holding “[f]reedom of the person [to] be inviolable.” This right was initially given extraterritorial consideration by the Administrative Court of Cologne. It may again hold water in the Federal Constitutional Court’s consideration of the two deaths specifically alleged here.
Equally persuasive, however, is the Basic Law’s own incorporation of international law in Article 25. This provision makes clear that international law is “an integral part of federal law” that “take[s] precedence” over domestic law. Given this deference, the Federal Constitutional Court is bound to consider international law instruments not yet evaluated by the below courts.
For instance, the court will likely draw upon the International Covenant on Civil and Political Rights (ICCPR), which Germany has ratified. Under Article 6 of this treaty, “[e]very human being has the inherent right to life” without arbitrary deprivation. This right under international law therefore supplements and buttresses the German constitutional right under the Basic Law.
In other words, even if Plaintiffs’ claim were to fail under domestic constitutional law, Germany’s commitments under international law may likely bridge the gap, given the Basic Law’s own incorporation of these obligations.
Yet, for this logic to work, the Federal Constitutional Court must first find a sufficient nexus between Plaintiffs and Germany such that the extraterritorial Plaintiffs are protected by the Basic Law. The court may either defer directly to the Administrative Court of Cologne’s finding of standing, or separately acknowledge Germany’s role in these unlawful attacks.
Importance of the Decision in Germany and Beyond
Regardless of the outcome, the court’s decision is bound to impact U.S. drone activities in the region, if not begin to chip away at continued U.S. violations of international law more broadly.
If Plaintiffs prevail, the court might close Ramstein to U.S. drone activity, which would destabilize current U.S. air strikes. Because Ramstein is the largest American air base outside of the United States and the “high-tech heart of America’s drone program,” closing the base might seriously hamstring U.S. drone operations in MENA.
Tellingly, Yemen is not the lone target of U.S. air strikes in recent years. The United States has likewise attacked other countries in the region, including Pakistan and Afghanistan, ostensibly stamping out terrorist cells but killing thousands of innocent civilians in the process. Somalia in particular witnessed an unprecedented rise in air strikes in 2020, leaving civilians to “pay the price.” And this may be just the tip of the iceberg as additional deaths remain unreported. In 2019, former President Trump put an end to publishing civilian deaths, calling the practice “superfluous” and “distracting.”
Though these statistics have been hidden, it remains apparent that the United States continues to rely on military bases in Europe to operate and deploy drones in MENA. For instance, Italy hosts a U.S. airbase in Sicily known as the Naval Air Station Sigonella, which has green-lit U.S. drone attacks on Libya.
In addition to Ramstein, Germany also houses another U.S. base known as “Africom” (U.S. Africa Command). This base has been involved in the uptick of U.S. attacks on Somalia. And while former President Trump announced plans in August 2020 to reduce the number of U.S. troops stationed in Germany, President Biden has put this withdrawal on pause.
Despite this uncertainty, the Federal Constitutional Court’s decision could nevertheless set the tone for European participation in these affronts. Should Germany take a stronger position against the United States and inhibit Ramstein’s involvement in further drone attacks, the decision could have significant ripple effects.
It may indeed signal to other European countries that they can and must counter illegal U.S. drone strikes by closing their domestic bases to U.S. use. Ultimately, by leveraging their bilateral relations with the United States, Germany and other European countries might begin to reverse the tide of U.S. drone strikes and international law infractions.
Matthew E. Dwelle is a second-year student at Columbia Law School and a Staff member of the Columbia Journal of Transnational Law. He graduated from Brown University in 2019.