Ramstein landmark ruling: US drone warfare, human rights, and alliance logic
US drones operated from Germany fly attacks in Yemen. Three Yemenis claim their rights under German law were violated, but German courts dismissed their lawsuit.
MQ-9 Reaper drone, armed with laser-guided bombs and Hellfire missiles
(Image: US Air Force)
In a ruling on the Ramstein Air Base, the Federal Constitutional Court reaffirms the universal binding force of fundamental rights but at the same time denies three Yemenis the enforcement of their claim to protection. The core argument: because the US did not systematically violate fundamental and human rights in the drone war, the plaintiffs' claim to protection under fundamental rights does not give rise to an obligation for the Federal Republic to intervene. Further arguments include Germany's ability to form alliances and the primacy of reasonable assessments by “competent German state authorities.” Almost five years after the Federal Administrative Court dismissed the lawsuit filed by Faisal bin Ali Jaber, Ahmed Saeed bin Ali Jaber, and Khaled Mohmed bin Ali Jaber, they have now also failed before the Federal Constitutional Court (BVerfG).
Two family members of the complainants were killed in a drone strike in the village of Khashamer in the summer of 2012. The drone is said to have been remotely controlled from the US air base in Ramstein, Germany. The survivors say they are still suffering from the consequences. They accuse the Federal Republic of Germany of failing to fulfill its obligation to protect the fundamental right to life and physical integrity.
Fundamental rights also apply abroad
According to a press release, the Second Senate of the Federal Constitutional Court ruled on Tuesday (Ref. 2 BvR 508/21) that “the Federal Republic of Germany has a general duty to protect fundamental human rights and the core norms of international humanitarian law, even in cases with foreign elements.” However, only under certain conditions does this result in an obligation to take action: “Under certain conditions, depending on the individual case, this duty to protect may develop into a concrete duty to protect fundamental rights,” the ruling states. “Such a duty to protect under Article  2(2) sentence  1 GG refers to compliance with applicable international law for the protection of life. It also covers threats emanating from another state.”
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The BVerfG expressly rejects any restriction to the protection of residents or citizens of Germany. The presiding judge emphasized that the court was going beyond its previous case law. However, according to the ruling, the bar is set high when it comes to the actions of third countries abroad: rules of international humanitarian law and international human rights law serving to protect life must be “systematically violated.” The complainants had not proven this. In addition, the Federal Republic's ability to form alliances is a constitutional asset that must be considered.
No risk of excessive collateral damage and violations of fundamental rights
Without the addition of further elements, “The (high) number of civilian casualties cannot in itself justify a serious risk of systematic violations of the relevant international law in this case,” the BVerfG recognized. “The reports and resolutions cited do not provide sufficient evidence that the prohibition of excessive collateral damage has been systematically violated in Yemen.” The New America Foundation currently estimates that there have been up to 1,800 victims of the drone war in Yemen, including up to 150 civilians.
Although the US and Germany may have different views on international law “in individual cases,” “However, this does not call into question the fundamental trust between allies in the legality of each other's actions, at least as long as the US's legal opinion, which differs from that of the Federal Republic of Germany, remains within the bounds of what is permissible under international law,” the Senate considers. “This is the case here.”
The decision is apparently up to German federal ministers, because according to the constitutional ruling, “the legal opinion of the German state organs responsible for foreign and security policy, to which the Basic Law grants a fundamentally wide margin of discretion in the regulation of foreign relations, must be considered to the extent that it proves to be justifiable.” German courts cannot therefore declare incorrect interpretations by the government to be inapplicable in this area simply because they are incorrect, but only if they are unjustifiable.
Reaction of the complainants
Ahmed and Khaled bin Ali Jaber call today's ruling “dangerous and shocking: It sends the message that states that support the US drone program bear no responsibility when civilians are killed in the process.” They did not sue only for themselves and their murdered relatives, but for innocent victims worldwide, they write in a press release published by the European Center for Constitutional and Human Rights (ECCHR). “Who can we turn to now if we seek justice?”
Andreas Schüller of the ECCHR sees one positive aspect: The decision leaves “the door open for future cases. Violations of international law can be reviewed in court, even if the court sets high hurdles for this. This is an important finding by the Federal Constitutional Court in these times.”
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