On 19th March 2019, the German Higher Administrative Court for North Rhine-Westphalia rendered a highly interesting and important judgment. It addresses no less than the compatibility of US drone strikes in Yemen with international law, the role of domestic courts with regard to international law, and the scope – and limits – of judicial review in foreign affairs.
The case was brought by Yemeni claimants against Germany for its alleged involvement in the US drone programme. While Germany neither publicly supports nor actively participates in the US drone programme, it is nearly undisputed that the US Air Base in Ramstein, Germany, plays a vital role therein (see here). The Court held that, first, Germany is constitutionally obliged to ascertain that the US drone strikes conducted via Ramstein are compatible with international law. Secondly, in case the government finds the US practice to be legally contentious, German authorities have to take efforts in order to ensure that international law is complied with.
The full reasoning of the decision is not yet available in writing, but the press release (see here for an unofficial English translation) and the transcript of the oral pronouncement of the decision (see here) allow for some preliminary remarks. (Note that the Higher Administrative Court on the same day rendered a second judgment that concerned US drone strikes, albeit in Somalia (see here). This contribution, however, focuses on the “Yemen case”.)
In 2012, Salem bin Ali Jaber, a Yemeni imam known for openly criticising Al Qaeda was invited to deliver a sermon at the local mosque of Khashamir, Yemen, where he attended a family wedding. In that course he was approached by three members of Al Qaeda requesting a meeting. Salem asked his relative, and local police officer, Waleed to accompany him. Shortly after the meeting commenced, US drones fired a series of four Hellfire rockets on the group killing both Salem and Waleed bin Ali Jaber as well as the three Al Qaeda members.
This prompted two strings of litigations. First, the claimants – relatives of the deceased – directly challenged the lawfulness of the strike before US Courts and sought a declaration that these constitute extrajudicial killings incompatible with international law. The Court of Appeals (D.C. Cir.), however, dismissed the claim on the basis of the political question doctrine (see here and for a case note here). Secondly, supported by the ECCHR, the claimants turned to German courts addressing the more indirect role of Germany. They argued that Germany is obliged to inhibit the US from using Ramstein for drone strikes fearing that they may themselves be targeted in the near future. In their legal reasoning, they relied on a positive obligation (Schutzpflicht) derived from their right to life as guaranteed under the German Basic Law.
The First Instance Court’s Judgment
In 2015 the Administrative Court of Cologne found the claim to be admissible but rejected it on the merits (see here and for a comment here, both in German). Nonetheless, the Court’s decision – partly explicitly and partly implicitly – clarified three important issues. First, the claimants enjoy standing before German courts. That is because fundamental rights such as the right to life apply whenever and wherever German public authority is exercised. Their applicability is not limited by the mere fact that public authority was exercised extraterritorially and consequently does not require “effective control” over foreign territory. Secondly, this extraterritorial dimension also applies to positive obligations. Thirdly, the political question doctrine has no place in German constitutional law.
Yet, the Court limited its judicial scrutiny due to two considerations. Firstly, while positive obligations require measures that are at least apt to protect the respective right (Untermaßverbot), the Court’s scrutiny is limited to examining whether they are “evidently impractical” (“evident unzureichend”). Besides this, the foreign relations dimension of the case also vests the executive with wider discretion (Ermessensspielraum) to the detriment of judicial review competences. On that basis, the Court did not contest the German government’s legal assessment which found no reason to question the legality of US drone strikes in Yemen. Furthermore, Germany did not remain wholly inactive but sought assertions by the US that it complies with German and international law. Such declarations constitute, according to the Court, an apt measure that is not “evidently impractical”. Hence, it concluded that Germany fulfilled its positive obligation towards the claimants.
The Decision of the Higher Administrative Court
On appeal, the Fourth Senate of the Higher Administrative Court agrees with the Cologne Court on the doctrinal point of departure: It confirms that the claimants can rely on a positive obligation and that there is, in principle, a wider margin of discretion to be afforded to the executive. Yet, from that point onwards the two decisions diverge.
The Higher Administrative Court exercises much closer scrutiny and finds that Germany has not fulfilled its positive obligations arising from the right to life. The measures taken to this end by the German government do not suffice. Rather, they are based on an erroneous factual assessment and a legal position that is ultimately untenable.
As a consequence, the Court examines the legality of US drone strikes in Yemen under international law. It stops short of outright denouncing them as violating international law. Yet, the judges find “strong reasons” to regard the US practice as at least partly contravening international (humanitarian) law and, more specifically, the duty to distinguish between civilians and combatants as recognised by customary international law.
Because the legality of the drone strikes is at least doubtful, the argument continues, the right to life of the claimants might be unlawfully infringed upon. This, however, does not vest the claimants with a right to demand from the German government to put an end to the use of Ramstein Air Base within the US drone programme. Yet, it triggers a two-fold obligation of the German authorities to:
1) make sure [vergewissern], on the basis of the legal assessment of the Senate, whether the practice of US drone strikes in the Yemeni region where the claimants reside is in conformity with international law as it stands – to the extent that facilities located in Germany are involved.
2) If necessary, the defendant has to take measures that it deems appropriate in order to work towards [hinwirken] compliance with international law. (see for both citations transcript, p. 2-3)
While the Court does not specify which measures might qualify as “appropriate”, it finds that the means employed so far (blanket assertions of compliance with international law by the US) do not suffice.
A Stricter Legal Standard
Amongst the many noteworthy issues raised in the decision, two points stand out. The first one is that the Higher Administrative Court applies a stricter legal standard. To this end, it recalls the importance of the right to life and the right to judicial protection under the German Basic Law which, in principle, guarantees that no exercise of public authority or executive discretion is exempted from judicial control.
Moreover, and that is one of the most important and interesting parts of the decision, the Court finds that whether the claimants can rely on the right to life and seek protection from the German state against US drone strikes depends on their lawfulness under international law. While linking the existence and scope of a positive obligation to the lawfulness of the acts threatening the right in question is neither unheard of nor ground-breaking in itself, the application of this reasoning to cases such the present one is not that usual and thus remarkable.
As a consequence, the Higher Administrative Court concludes that the legality of the drone strikes is not a political question left to the discretion of the government but a legal one that is open to being, and indeed ought to be, assessed by the courts. This stands in stark contrast to the findings of both the US Court of Appeals as well as the Administrative Court of Cologne which either exercised no judicial scrutiny at all or in a very limited form. To sum up, the Higher Administrative Court, while acknowledging that a lower intensity of judicial scrutiny is indeed required, made clear that lower does not necessarily mean low.
A Different Institutional Understanding
Relatedly, a second interesting observation is that the Court explicitly reflects upon its own institutional role. It nearly frames its judgment as a (legal) service to the government:
the examination of the legal questions arising in the case by an independent court and in a proceeding in accordance with the rule of law will enable the German authorities to address the remaining doubts as to the legality [of US drone strikes in Yemen] under international law in cooperation with the United States (see transcript, p. 7).
Furthermore, by doing so, the Court
contributes, within the boundaries of its jurisdiction, to the adherence to international law within the framework of fighting terrorism – to the extent that Germany assumes a significant role therein (see transcript, p. 6).
While the Court regards itself constitutionally obliged to do so, it is clearly willing to assume a strong role with regard to foreign relations on the one hand and with regard to international law on the other. The transcript of the oral announcement partly even reads as a plea in favour of such an institutional understanding of domestic courts.
What can or should the German Government do?
As outlined, the Court’s judgment leaves a considerable degree of uncertainty or, in more positive terms, executive discretion to the German authorities on how to proceed. What seems to be clear already now is that they will most probably have to open an investigation into the role of Ramstein within the drone programme and to “ascertain” its compatibility with international law. This, however, is complicated by the fact that the US enjoy far-reaching autonomy over Ramstein Air Base under the NATO Statute of Forces Agreement (NATO SOFA) and its Supplementary Agreement. The German authorities’ powers to access, search, or in any other way intervene with the use of Ramstein Air Base are very limited (see Articles 49, 53 and 53 lit(a) of the Supplementary Agreement).
Yet, even if an investigation finds the drone strikes operated via Ramstein to be legally contentious, it remains unclear which measures the German government is expected to take to discharge its positive obligation. On the one hand, the Court reiterates that it is the government to decide which “measures it deems appropriate” and thereby leaves some room for manoeuvre. On the other hand, the Court mandates some kind of action that reasonably qualifies as “appropriate”.
This connects with the question which measures the German authorities can take at all. Surely, they might exercise, or increase, political and diplomatic pressure on the US. Whether this will yield any tangible results, seems doubtful, however. At the other end of the spectrum, the Germany government might take “hard” legal measures. Articles II and XVI of the NATO SOFA and Article 53 (1) of the Supplementary Agreement oblige the US to act in accordance with German and international law which would be a possible lever to make use of for the German government (see on that here). Yet, while certainly more promising in terms of effectiveness, it is, from a political perspective, rather unlikely that Germany is willing to go down this road.
Conclusion and Outlook
To conclude, the Higher Administrative Court delivered a remarkable decision that does not shy away from tackling the legal questions the case raises even to the extent that they touch upon “political questions”. In doing so, the judges challenge the naïve but convenient reliance of the German authorities on assertions of compliance by the US.
Surely, many problems remain unresolved and some (doctrinal) questions unanswered. Some might be clarified once the judgment is available in writing. Others will presumably persist: Undisputedly, the Court’s judgment manoeuvred the German government in a rather difficult position. Measures that can possibly be taken are likely to oscillate between being ineffective and politically undesired or even unreasonable. To navigate through these measures is the privilege, or plight, of the German authorities. Yet, it remains to be seen whether the German government will decide to appeal the decision to the Federal Administrative Court opening yet another chapter in the legal dispute about Germany’s role concerning the use of Ramstein Air Base within the US drone programme.
One has to keep in mind though what the alternatives to the Higher Administrative Court’s reasoning and findings are. If one, with good reasons, joins the Court in its doubts about the legality of US drone strikes in Yemen and acknowledges the leading role of Ramstein Air Base therein, is remaining inactive or relying on blanket assertions of compliance by the US really a worthwhile and valid option? The Higher Administrative Court, from a legal perspective, clarified that it is not.
Author’s note: In 2014, the author undertook a four-month internship at the ECCHR, the organization which supported the claimants in the legal proceedings discussed in this post. He was not involved in, or affiliated with, work undertaken on the Ali Jabar case discussed above.