Published: 27 April 2020 Author: Stefan Talmon
On 3 January 2020, the United States killed Iranian Major General Qasem Soleimani and several members of his entourage in a drone strike near Baghdad International Airport. General Soleimani was the commander of the Quds Force, a military unit of the Islamic Revolutionary Guard Corps of Iran responsible for its foreign operations, supporting non-State actors in neighbouring countries, including Shia militias in Iraq. The United States considered Soleimani as the mastermind behind numerous attacks by Iranian proxies against American troops in the Middle East.
On 27 February 2020, eight members of the opposition Left Party in the German Federal Parliament filed a criminal complaint against the Federal Chancellor and several Ministers of the Federal Government for aiding by omission the killing of Qasem Soleimani and others. In their complaint the Members of Parliament (MPs) asserted that the killing of General Soleimani and the other persons killed in the drone strike constituted a violation of international law. According to the MPs, the killing near Baghdad Airport without Iraq’s consent “was committed in violation of their fundamental right to life, in violation of Iraq’s sovereignty and territorial integrity.” The MPs continued:
“Had the U.S. been involved in an international armed conflict with Iran on or before 3 January 2020, the targeted killing of a military commander, i.e., a fundamentally legitimate military target, would have to be assessed according to the rules of international humanitarian law and could be consistent with the rules of international law even outside the context of a specific military combat situation. However, bearing in mind the principle of distinction under international humanitarian law, this does not mean that the killing of victims (particularly civilians) who were also in the convoy or just happened to be in the vicinity, would likewise be justified under international law. […]
The fact remains that, if it is to be assumed that General Soleimani was killed in the context of an international armed conflict triggered by the drone strike against him and his killing was consistent with international humanitarian law, that international armed conflict would have been initiated by the U.S., which means that the event would have to be assessed from the standpoint of a war of aggression.
If the killing of Qasem Soleimani and other persons is not covered by the law applicable during times of armed conflict but by the rules of international law applicable in peacetime, with all the guarantees of human rights, his killing could in principle only be permissible if it was necessary in a situation of self-defence or emergency to avert imminent harm to life or limb […] Such justification is out of the question here.”
For the MPs, the killing constituted a violation of international law by the United States for which Ramstein Air Base and the satellite relay station installed there were used. The MPs asserted:
“U.S. combat drones are not piloted directly from the theatres of operation in the Near and Middle East. Instead, the command signals for the U.S. drone strike were presumably relayed via a satellite relay station located on German territory, namely the U.S. air base at Ramstein in the German state of Rhineland-Palatinate. Due to the curvature of the Earth, this is currently the only way for U.S. Forces to transmit command signals from the U.S. to Reaper drones in Iraq and receive corresponding signals and sensor data from the drones.
[…] the drone strike on Qasem Soleimani’s convoy could likewise not have been carried out but for the relay of data via the relay station at the U.S. air base in Ramstein. Notwithstanding the fact that other relay stations are being deployed, data for U.S. drone missions in Iraq can only be relayed via the station in Ramstein.”
The MPs further asserted that the Federal Government had an obligation to ensure that no violations of international law were committed on German territory and, in particular, that Ramstein Air Base was not used for drone strikes in violation of international law. They claimed that the members of the Federal Government named in the criminal complaint had knowledge both of that obligation and of the fact that U.S. drone strikes were being carried out with the involvement of the U.S. Ramstein Air Base in violation of international law.
The MPs claimed that the members of the Federal Government named in the complaint aided by omission the illegal killing of General Soleimani and others because:
“The members of the Federal Government could have prevented the drone strike on 3 January 2020 and thus the murder of the persons killed as a result, had they prevented the facilities in Ramstein from being used for air strikes with drones in the Near and Middle East in violation of international law. However, in full knowledge of their legal obligation, they took no action at all.”
In a letter, dated 9 March 2020, the Federal Public Prosecutor General informed the MPs that he would not open a preliminary investigation because the submitted facts established no probable cause for holding the members of the Federal Government criminally liable for aiding by omission the murder of Qasem Soleimani and the other persons killed in the drone strike. The Federal Public Prosecutor General stated:
“There is no probable cause for any criminal liability for assisting an international crime […] by omission, irrespective of whether and, if so, since when there has been an (international) armed conflict between the United States of America and the Islamic Republic of Iran, or possibly even between the United States of America and Iraq (which is unlikely) and irrespective of whether the drone attack in question could not actually have been carried out […] without the involvement of a satellite relay station located at Ramstein airbase.
Even if the use of the military property in Ramstein had been ‘conditio sine qua non’ for the killing of General Soleimani and the other persons, this could not establish a criminal liability for omission of the persons against whom the complaint has been brought”.
The short reasoning given mainly dealt with questions of German criminal law. The Federal Public Prosecutor General stated that there could not be any criminal liability for omission because the persons against whom the criminal complaint had been brought were not legally responsible for ensuring that the result – here, the killing – did not occur. The persons concerned were not in a “position of guarantors”. The members of the Federal Government, including the Federal Chancellor, were not “protector guarantors” obliged to protect persons which may have been killed abroad by drone strikes in violation of international law, nor were they “supervisor guarantors” who were under an obligation to prevent the commission of international crimes or other offences (in contravention of international law) by foreign State officials on lawfully used properties in Germany. With regard to international law, the Federal Public Prosecutor General remarked:
“A criminal law guarantor duty to prevent any sovereign acts by foreign State officials in the Federal Republic of Germany does not arise either from public international law or from the provisions of the Constitution.”
According to the Federal Public Prosecutor General, constitutional law prohibited the active participation of the Federal Republic of Germany and German public officials in the commission by foreign State officials of international crimes and other violations of the general rules of international law in terms of Article 25 of the Constitution within German territory. However, this did not mean that there was a duty of prevention sanctioned by criminal law under which German public officials would be held criminally responsible for violations of international law by foreign State officials.
Finally, the Federal Public Prosecutor General also briefly addressed the claim that the members of the Federal Government should be held criminally liable for aiding by omission a crime of aggression because the killing of Qasem Soleimani in the course of an international armed conflict had constituted such a crime. Section 13 of the German Code of Crimes Against International Law (CCAIL) provides:
“(1) Anyone who wages a war of aggression or commits another act of aggression which by its character, gravity and scale constitutes a manifest violation of the Charter of the United Nations shall be liable to imprisonment for life. […]
(3) An act of aggression is the use of armed force by a State against the sovereignty, territorial integrity or political independence of another State, or in any other manner inconsistent with the Charter of the United Nations.”
Section 13 of the CCAIL implements Article 8bis of the Rome Statute of the International Criminal Court. The Federal Public Prosecutor General dismissed the complaint with regard to the crime of aggression, stating:
“Criminal liability for aiding a crime of aggression in terms of section 13 of the CCAIL is unlikely considering the limited scope in terms of location and time of the attack on the Soleimani convoy.”
In this context, the Federal Public Prosecutor General referred to the travaux préparatoires of the CCAIL which made clear that there is a particularly high threshold for the crime of aggression both under the Rome Statute and the CCAIL. In its explanatory statement on draft section 13 of the CCAIL, the Federal Government had stated that
“an act of aggression on its own is not sufficient to make the act a crime of aggression. Rather, the act of aggression must constitute ‘by its character, gravity and scale a manifest violation of the Charter of the United Nations’. This means that not every use of force by States in violation of international law also constitutes a crime of aggression. Legally controversial operations, such as humanitarian interventions, and cases of insufficient intensity should not be covered by this crime and should not be punishable as a crime of aggression.”
“The requirement of ‘manifest violation’ adopts the wording of 8bis of the Rome Statute. It is thus a prerequisite for criminal liability that the violation is manifest. According to the Kampala decisions it was the aim of the threshold clause to limit criminal liability to clear-cut cases. It thus serves as a corrective within the elements of crime. Acts which may be controversial with regard to the prohibition of the use of force (‘grey areas of international law’) and uses of force which are of insufficient intensity are to be excluded. This means that only some violations of the prohibition of the use of force fall under the provision.
Manifest means that the violation of the United Nations Charter must be evident to any outside observer and beyond any doubt. According to the law of treaties, Article 46 of the Vienna Convention on the Law of Treaties (VCLT) stipulates that a violation of domestic law is manifest if it is objectively evident to any State conducting itself in accordance with normal practice and in good faith.
The high threshold corresponds to the interpretation of the previous section 80 of the [German] Criminal Code, the result of the negotiations in Kampala and customary international law. The threshold clause serves as a filter and limits the scope of application of the provision based on objective components (‘character, gravity scale’). Criteria for assessment are thus both qualitative (‘character’) and quantitative elements (‘gravity, scale’). According to the resolution of the Review Conference ‘RC/Res. 6’ of 11 June 2010, by which the amendments to the Rome Statute on the Crime of Aggression were adopted, a single component is not sufficient to determine a manifest violation of the Charter. Rather, there must be at least two components (Resolution RC/Res. 6 Annex III, Understandings, number 7: ‘It is understood that in establishing whether an act of aggression constitutes a manifest violation of the Charter of the United Nations, the three components of character, gravity and scale must be sufficient to justify a “manifest” determination. No one component can be significant enough to satisfy the manifest standard by itself.’ With this, the threshold for a violation has been deliberately put high. Whether the violation is manifest must be determined as part of an overall assessment.
[…] With the elements of gravity and scope, smaller border incidents (when using minor military force) or short-term violations of territorial integrity (limited ‘scope’) can be clearly excluded. The element of the ‘character’ of the use of force, on the other hand, is also aimed at the purpose of the action and results in the exclusion from the provision of, for example, cases of humanitarian intervention or pre-emptive self-defence in the face of an impending armed attack. By their very character, the rescue of nationals and reactions to cross-border armed attacks by non-State actors also do not constitute a ‘manifest violation’. However, the interpretation of the requirement that the violation be ‘manifest’ must be decided on a case by case basis because, even in these situations, there may be a grey zone of international law.”
The Federal Public Prosecutor General’s decision and reasoning cannot be faulted. The criminal complaint by the MPs of the Left Party was doomed from the start. It is flawed for at least two reasons: first, it assumes that all U.S. drone strikes are illegal under international law which, of course, is not the case. Second, it assumes (“presumably”) that the command signals of all drone strikes in the Near and Middle East are relayed via the satellite relay station at Ramstein Airbase in Germany. Even critics of U.S. drone operations do not claim that all strikes are carried out via Ramstein. The Federal Government declared that it had been informed by the U.S. Government that drone operations use “various telecommunication relay stations.” The Minister of State at the Federal Foreign Office stated in parliament:
“Some run through Ramstein, others run through other locations; but we have no knowledge of which relay station is used for which operation. […] the Federal Government has no information on the use of the relay station in Ramstein in connection with the killing of Soleimani.”
If the MPs’ two assumptions that all drone strikes in the Near and Middle East are relayed via Ramstein and that all these strikes are illegal under international law are incorrect, criminal liability for aiding by omission under German criminal law would have required that the members of the Federal Government had prior knowledge of the specific drone strike against General Soleimani and its illegality under international law, and that they were guarantors of the right to life of the persons killed in the strike. There was thus never any probable cause for holding the members of the Federal Government criminally liable for aiding the U.S. killing of General Soleimani. Bringing the criminal complaint was more a political stunt than a measure in the interest of international law and criminal justice.
Category: International criminal law