New Legal Action Targets Germany’s Support for U.S. Drone Strikes

NEW YORK—Germany’s role in supporting drone strikes by the United States' military is being challenged in legal proceedings filed on behalf of an innocent Somali herdsman killed in an attack on February 24, 2012.

The legal challenges include a criminal complaint and a separate administrative action, both submitted by German lawyers with the support of the Open Society Justice Initiative on September 17 on behalf of the herdsman’s son.

The drone strike was not directed at the herdsman who died, but 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 criminal complaint asserts 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 African command headquarters (Africom) in Stuttgart, which is responsible for all military operations in Africa; and the U.S. Air Force base at Ramstein, which plays an important role in conducting U.S. drone operations worldwide.

The criminal complaint was filed with prosecutors in the town of Zweibrücken near Ramstein, while the administrative complaint was lodged before the courts in Cologne. The identities of the victim and his son are being kept confidential for reasons of the family’s personal safety.

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 United States drone strikes. 

Natalie von Wistinghausen, one of the German lawyers representing the son of the murdered herdsman, said:

“Our client’s father went out to work one day in the fields, and never came back, becoming the innocent victim of a drone strike he had no reason to suspect was coming. There has been no investigation into his case. His family has received no explanation for why he was killed.  They want justice.”

Amrit Singh, who heads the Justice Initiative’s work on addressing national security-related human rights abuses, said:

“This case has far-reaching implications. Germany has allowed the United States to use its territory to conduct drone strikes that secretly killed countless other individuals, in Somalia and elsewhere. At a time when an increasing number of governments are becoming complicit in secret U.S. drone strikes or themselves acquiring armed drones, it is vitally important for the German courts to guard against the danger of states invoking a virtually limitless authority to kill.”

The complaint calls for an investigation with regard to the following suspected acts:

• the jointly committed murder of both the herdsman (referred to as A.B.) and Mohamed Sakr, citing Sections 211 (1) and (2) and Section 25 (2) of the German Criminal Code
• jointly causing the detonation of explosive materials pursuant to Section 308 (1) and (2) of the German Criminal Code which caused the death of A.B and Mohamed Sakr

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.

The complaint before the Cologne Administrative Court alleges the German government violated constitutional provisions which should have prevented its support for the U.S. program of targeted killings, and Germany’s obligations under the European Convention on Human Rights. Further, the complaint argues that these violations represent a breach of the Status of Forces Agreements (Sofa) with NATO under which US forces are granted the right to operate in Ramstein and Stuttgart.

The administrative complaint calls for a judicial declaration that Germany has  committed these violations.

In addition to Natalie von Wistinghausen, the German legal team includes lawyers  Eberhard Kempf and Victor Pfaff.

In May this year,  the Administrative Court in 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 United States’ Central Intelligence Agency. Earlier this year, the Justice Initiative published Death by Drone: Civilian Harm Caused by U.S. Targeted Killings in Yemen, detailing civilian casualties caused in nine drone attacks carried out between 2012 and 2014.