Lawyers Say Court Errs in Ignoring German Role in U.S. Drone Strikes

NEW YORK—A German court today erred in rejecting a legal challenge to Germany’s support for targeted killings carried out by the United States, according to lawyers for the complainant.

Cologne’s Administrative Court ruled the case―related to a lethal drone strike in Somalia in February 2012―was inadmissible, finding there was an insufficient link between the inaction of the German government and the constitutional rights of the complainant.

The administrative complaint was filed on behalf of the son of an innocent Somali herdsman killed in an attack on February 24, 2012. The complaint argued that allowing U.S. bases on German territory to support such drone strikes violates both the German constitution, as well as Germany’s Status of Forces Agreements with NATO under which U.S. forces are granted the right to operate on its territory. The complaint sought a judicial declaration that Germany has committed these violations.

The complainant was represented by Eberhard Kempf, Victor Pfaff, and Natalie von Wistinghausen. After the decision, the lawyers stated that the court made a mistake and that there is an obligation for the German government to ensure German law is respected on its territory.

Eberhard Kempf said: “While we welcome the gravity with which the court addressed this case, we regret that the decision to dismiss the case on admissibility grounds is in error. The court says that the mere fact that the German government is permitting the U.S. to conduct drone strikes in Somalia is insufficient for giving the plaintiff standing to raise his constitutional rights in German administrative proceedings.”

Kempf also stated: “We will appeal this decision and will reiterate our argument that the failure of the German government to address the use of German territory for U.S. drone strikes in Somalia is a sufficient link to the violation of our client’s constitutional rights. The administrative complaint is therefore admissible.”

The drone strike was not directed at the herdsman who died, but reportedly at British-born Mohamed Sakr, who was also killed in the attack. The British government had previously stripped Sakr of his British citizenship, asserting he was involved in terrorism-related activity. The identities of the victim and his son are being kept confidential from the public for reasons of the family’s personal safety.

The civil action heard today asserted that German officials are jointly responsible for the deaths of the two men because Germany hosts two U.S. military facilities involved in planning and operating drone strikes in Africa: the U.S. military’s Africa command headquarters in Stuttgart, which is responsible for all military operations in Africa; and the U.S. Air Force base at Ramstein, which plays an indispensable role in conducting U.S. drone operations worldwide, including in Somalia.

The legal action was submitted by German lawyers with the support of the Open Society Justice Initiative on September 17, 2015, on behalf of the herdsman’s son. A separate criminal complaint was also filed before the state prosecutor in Zweibrücken, near Ramstein Air Base. On December 10, 2015, the federal prosecutor issued a decision stating that he lacked jurisdiction over the case. Accordingly, the prosecutor in Zweibrücken retains jurisdiction and must decide whether or not to open an investigation.

In its ruling today, Cologne’s Administrative Court gave credence to the criminal complaint, noting that it is a more appropriate forum for the complainant to seek relief. A fuller formal judgement from the administrative court is expected within two weeks.

No one has yet been held accountable for the murder of the herdsman and there has been no known investigation into his case. The United States has not officially acknowledged killing him. Germany has not officially acknowledged its role in supporting U.S. drone strikes.

In addition to demonstrating legal violations, both complaints argue that the February 24, 2012, strike did not take place in the context of an armed conflict involving the United States and Germany. The complaint contends that the so-called “global war on terror” is an unsupportable concept under international law, and that hostilities involving the United States and Germany were not of sufficient intensity to qualify them as parties to an armed conflict in Somalia.

In May last year, the Administrative Court of Cologne dismissed a complaint over the role of Ramstein in drone strikes filed by the European Center for Constitutional and Human Rights (ECCHR) on behalf of three Yemeni citizens. ECCHR is appealing.

The Open Society Justice Initiative is part of the Open Society Foundations, the largest private funder of human rights work around the world. Its previous litigation on national security–related abuses has included winning judgments from the European Court against Poland and Macedonia for cooperating with secret torture and rendition by the U.S. Central Intelligence Agency.