Published: 12 October 2021 Author: Stefan Talmon
On 15 October 2014, three Yemini nationals brought a case against Germany in the Cologne Administrative Court requesting the court to order the Federal Government to prohibit the United States from using Ramstein Air Base in southern Germany for lethal drone strikes in Yemen, and especially in the Hadramout region. The plaintiffs claimed that the air base, the largest U.S. military base on foreign territory, was vital for U.S. drone operations in Yemen. The drones deployed in Yemen were typically launched from Djibouti and piloted from the United States. The data controlling the drones was transmitted via fibreoptic cable from the United States to Ramstein Air Base, and from there via a satellite relay station to the drones. In the same way, on a return channel, data was transmitted from the drones to the pilots in the United States. Due to the earth’s curvature, directly controlling the drones from the US without the Ramstein satellite relay station would not be possible. The case turned mainly on questions of constitutional law and, in particular, whether the Federal Government had a duty to protect foreigners living abroad against encroachments by other States of their fundamental constitutional rights to life and physical integrity if there was a sufficiently close link to German territory, such as the location of the satellite relay station on German territory. A central argument to the plaintiffs’ case was that the U.S. done strikes in Yemen were illegal under international law.
On 27 May 2015, the Cologne Administrative Court dismissed the case without examining in detail the legality of the U.S. drone strikes in Yemen. The Court held that, where the constitutional duty to protect was based on allegations of violations of international law by another State, the courts were limited to reviewing whether the position taken by the Federal Government on the question of international law was reasonable. On the basis of the limited information available, the Federal Government had found no indication of a violation of applicable international humanitarian law. The Court considered this assessment of the international legal situation in Yemen to be reasonable and non-arbitrary. The Court held that an overriding argument could be made that there existed in the whole territory of Yemen a non-international armed conflict in terms of common Article 3 of the Geneva Conventions and the Second Additional Protocol to the Geneva Conventions on the Protection of Victims of Non-International Armed Conflicts. At the time of the court’s decision, the troops of the Saudi-led coalition were fighting on the side of the elected government against the so-called Houthi rebels, who had brought large parts of the country under their control, and against Al Qaida on the Arabian Peninsula (AQAP), who controlled large parts of the Hadramout region. There were strong indications that AQAP was sufficiently organised to be a party to a non-international armed conflict within the meaning of international humanitarian law. This was supported by their military clout and the ability to carry out targeted military operations, as well as their territorial control over the province of Hadramout. It also seemed reasonable to assume, as the Federal Government did, that the United States was supporting the Yemeni government in this conflict by deploying drones against AQAP because the drone attacks were carried out in agreement and in coordination with the Yemeni government and were directed against a common enemy.
The plaintiffs appealed the decision to the Higher Administrative Court of North Rhine-Westphalia at Münster. In its judgment of 19 March 2019, the Higher Administrative Court partly reversed the decision of the Cologne Administrative Court and ordered the Federal Government to take appropriate measures to make sure that the United States used Ramstein Air Base for lethal drone attacks in Yemen only in accordance with international law and, where necessary, to endeavour to ensure that the U.S. Government complies with international law. The original 139-page verdict received a lot of attention because the court examined, inter alia, the legality of U.S. drone warfare in great detail and concluded that there were important “factual indications” that past U.S. armed drone strikes in Yemen involving Ramstein Air Base were not only incompatible with international legal requirements, but also that further drone operations contrary to international law were to be expected in the future. In particular, the Court held:
“There are considerable doubts as to whether the general practice of the United States on the use of armed drones in Yemen adequately takes into account the principle of distinction as required by international humanitarian law; in particular, whether specific attacks are limited to those persons who, as members of a party to a conflict, fulfil a continued combat function or, as civilians, directly participate in hostilities.
[…] the public statements of the U.S. administration clearly indicate that the United States sees its fight against al-Qaida, the Taliban, and associated forces, including AQAP and the Yemeni branch of IS [Islamic State], as one single, potentially worldwide armed conflict. They neither distinguish between different specific, geographically limited armed conflicts with the participation of specific, possibly organizationally independent regional armed (terror) groups, nor whether an attacked person fulfils an ongoing combat function for a party to the conflict. Even though the United States actually focuses its military operations on regional armed conflicts, it has so far not abandoned this broad understanding of a non-international armed conflict and of the group of persons who may be targeted in such a conflict as members of one of the conflicting parties, which is not in line with international humanitarian law.
According to official statements, the United States is assuming that its military operations against AQAP and IS in Yemen are each related to an armed conflict within the meaning of international humanitarian law. […]
There is overwhelming evidence that this is based on (too) broad an understanding of a non-international armed conflict that is incompatible with international humanitarian law. According to that understanding, the United States considers its attacks on AQAP and IS in Yemen as part of an ultimately global non-international armed conflict between itself and its own coalition partners, on the one hand, and al-Qaeda, the Taliban, and groups that are ‘associated’ or ‘affiliated’ with them, on the other hand – a conflict that has been ongoing since the terrorist attacks of 9 September 2001 and, in terms of its origin and continuation, is independent of the specific armed conflicts in Yemen described above. […].
The assumption of a global war against al-Qaida, the Taliban, and ‘associated’ forces holds a considerable structural risk of violations of the principle of distinction and the general prohibition of direct attacks against civilians, even where – as here – a non-international armed conflict in the sense of international humanitarian law actually exists.
The focus is not on whether the objectives are actually legitimate under international humanitarian law in the context of the respective armed conflict. This is demonstrated by the fact that the U.S. pronouncements do not seize on the legally decisive organizational integration of the targeted person in a certain non-State party to the conflict. It therefore remains unclear whether direct attacks are limited to persons who are either organizationally integrated in the respective opposing party to the specific conflict – here only AQAP or the Yemeni branch of IS – and fulfil a continued combat function, or who, as civilians, directly participate in hostilities in the context of the specific conflict. Reports of U.S. attacks on members of the religious and propaganda wings of AQAP also cast doubt on this. These doubts are reinforced by the fact that the United States also invokes its individual right to self-defence in order to justify its armed operations in Yemen under international law. In the past, the United States has, with regard to terrorist threats, derived an authorisation – alien to appliable international law – to use force ‘pre-emptively’ or ‘preventively’ even in situations in which there is still uncertainty about the time and place of an attack. The Senate is unable to identify an immediate or at least imminent armed attack on the United States by AQAP or the Yemeni branch of IS which could trigger a right of self-defence. It does not fail to recognize that both groups are calling for terrorist violence against the United States. […]
An imminent threat justifying the targeted use of deadly force cannot be assumed under any circumstances if there is only a general threat from terrorist attacks and a scenario of a certain future attack is not even specified by its nature, and its timing is not predictable. In this respect, resort to the right of self-defence according to Article 51 of the UN Charter is also precluded by the fact that the Security Council of the United Nations has addressed the general threat of terrorism, has repeatedly qualified it as a threat to international peace and security, and has adopted measures against it in accordance with Chapter VII of the UN Charter.”
Despite these findings on the United States’ drone warfare, the Court did not order the Federal Government to prohibit the United States from using Ramstein Air Base for drone strikes in Yemen because the contentious drone operations were not a priori contrary to international law. The Court acknowledged that, in the context of the ongoing non-international armed conflicts in Yemen, drone strikes were, in principle, permissible.
The Federal Government appealed the decision of the Higher Administrative Court to the Federal Administrative Court. In its judgment of 25 November 2020, the latter confirmed that the constitutional duty to protect could, in principle, require the German State to protect foreigners living abroad against encroachments or threats to their rights to life and limb by other States if there was a sufficiently close link to German territory.
Unlike the lower court, however, the Federal Administrative Court required for the constitutional duty to protect not just the theoretical possibility of a violation of international law but an actual violation of international law on the part of the other State. Clear “factual indications” of U.S. violations of international law or “serious doubts” about the compatibility of the U.S. drone strikes in Yemen with international humanitarian law were not considered sufficient. Based on the number and circumstances of past international law violations, there was to be an expectation in practice that there would be comparable violations in the future. In such a situation, the German State would have to intervene with the United States in order to prevent such violations. The duty to protect, however, required the German State to intervene only in situations where there was a general pattern of illegal acts under international law and not just isolated individual violations. A general pattern required there to be continuing or regular violations of international law. The Federal Administrative Court thus overturned the judgment of the Higher Administrative Court because the latter had not established on the facts that the U.S. drone operations in Yemen involving Ramstein Air Base regularly violated the requirements of international humanitarian law and, in particular, the prohibitions on indiscriminate attacks and attacks with excessive collateral damage. In any case, the Federal Administrative Court held that, considering its broad discretion in this regard, the Federal Government had fulfilled its potential constitutional duty to protect by entering into political consultations with the United States and by receiving assurances that any U.S. activities in Ramstein would be in conformity with applicable law.
In an obiter dictum, the Federal Administrative Court set out the rules of international law applicable to U.S. drone strikes in Yemen. It first endorsed the finding of the lower court that the drone operations against AQAP and IS did not violate the prohibition of the use of force in Article 2(4) of the UN Charter due to the consent of the Yemeni government. The Higher Administrative Court had stated:
“According to Article 2(4) of the UN Charter, any threat or use of military force against another State is, in principle, contrary to international law. This strict prohibition on the use of force is, at the same time, part of customary international law. The prohibition on the use of force applies in the international relations of States. Purely domestic situations, such as armed conflicts between the government and insurgents, are not covered. The prohibition on the use of force is not violated if a State, with the consent of the government of another State, intervenes by military force in an internal conflict existing in that other State. […].
The contentious U.S. drone operations in Yemen take place with the consent of the Yemeni Government and therefore do not violate the prohibition on the use of force according to Article 2(4) of the UN Charter.”
The Federal Administrative Court then turned to the compatibility of the drone strikes with the rules of international humanitarian law applicable to non-international armed conflicts. The Court stated:
“Of relevance here […] are the customary international law prohibitions on targeted or indiscriminate attacks on civilians and attacks with excessive collateral damage. It is beyond doubt that the prohibition of targeted and indiscriminate attacks on civilians which is regulated for international armed conflicts in Article 51(4) and (5) of Additional Protocol I is a general rule of international law that must also be observed in non-international armed conflicts. In addition, the prohibition of attacks with excessive collateral damage specified for international armed conflicts in Article 51(5)(b) and Article 57(2)(a)(iii) of Additional Protocol I applies as customary international law even in non-international armed conflicts. An opinio juris of the international community to that effect finds expression, inter alia, in resolutions of the UN Security Council and the UN Human Rights Commission, in other official documents of the United Nations, in decisions of international courts as well as in a large number of national legal and administrative regulations, including those of the United States.
In contrast to the customary international law prohibitions of targeted and indiscriminate attacks on civilians and attacks with excessive collateral damage in non-international armed conflicts, the distinction between fighters of a non-State party to the conflict and civilians is a difficult and controversial question. It cannot be readily assumed that the international treaty rule in Article 13(3) of the Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts of 8 June 1977 (Protocol II), according to which civilians shall enjoy the protection afforded by this Part, unless and for such time as they take a direct part in hostilities, has become customary international law, as the United States amongst others have not signed this agreement. In any case, it remains to be clarified under what conditions direct participation in hostilities can be assumed. The determination of a direct participation in hostilities causes problems, especially in unclear conflict situations in which State organs have no detailed information about how insurgent groups are organized, which person actually belongs to these groups, and which external signs can be used to identify the persons concerned. Some persons take the view that, for example, communication and logistics experts are also (de facto) combatants. Furthermore, the question has not been finally settled on what conditions a fighter may be killed who temporarily takes part in the hostilities in order to return to his role as a civilian afterwards. The rule in Article 50 (1) of Additional Protocol I, according to which in case of doubt whether a person is a civilian, that person shall be considered to be a civilian, is of no assistance because there is no evidence that this presumption forms part of customary international law applicable to non-international armed conflicts.”
The Federal Administrative Court thus allowed the flight control data for U.S. drone strikes in Yemen and elsewhere to continue to be relayed via Ramstein Air Base. The Federal Government would only have to intervene if the courts determined that individual U.S. drone strikes were illegal under international law and that there was a pattern of such illegal strikes involving Ramstein Air Base. With these requirements, the Federal Administrative Court made it practically impossible to bring successful actions in the German courts against the use of Ramstein Airbase for U.S. done operations. The Federal Administrative Court itself acknowledged that the determination of the compatibility with international humanitarian law of the U.S. drone strikes in Yemen was made more difficult (if not impossible) by the fact that these drone operations typically were not subject to the control of German authorities, and that it was highly unlikely that U.S. authorities, intelligence agencies and armed forces would provide the necessary information and cooperate.
Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.
Prof. Dr. Stefan Talmon LL.M. M.A