Last week, the German Federal Constitutional Court (BVerfG) issued a long-awaited ruling on Germany’s extraterritorial obligations to protect fundamental rights (2 BvR 508/21). The case concerned the US air base in Ramstein and the US Air Force’s drone missions in Yemen supported from there. Several Yemeni nationals had initially brought unsuccessful actions before the lower courts, seeking to compel Germany to take measures against the drone missions originating from Ramstein Air Base (see only BVerwG 6 C 7.19). Ultimately, they lodged a constitutional complaint with the Federal Constitutional Court on the grounds that Germany had a duty to protect when providing the territory from which drone missions were carried out, insofar as these drone missions violate international law. The constitutional complaint was politically explosive as it was aimed at obliging Germany to prohibit US activities in Ramstein; Germany would have snubbed an ally. Probably also to prevent this outcome, the BVerfG invokes the constitutionally intended alliance capability (Bündnisfähigkeit) of the Federal Republic and assumes a duty of protection only in the event of systematic violations of international law. In doing so, the BVerfG legitimizes the double standards of Western states, which are rightly criticized in the Global South when it comes to violations of international law by befriended regimes (see only here and here). This article argues that the understanding of the alliance capability developed by the Federal Constitutional Court in its established case law (para. 105) is by no means compelling, probably even contradictory, and therefore hardly suitable for specifying the duty to protect fundamental rights.

About the Case

As a measure of “self-defense” after the terrorist attacks of September 11, 2001, the US authorized itself to use force against any person, nation, or organization that was involved or seemed to be involved in these attacks. To this end, the US has resorted in particular to the targeted killing of individuals by armed drones. In order to attack more distant targets, particularly in the Middle East, the US armed forces built a satellite relay station at the Ramstein Air Base in Germany, from where the armed drones were to be controlled (para. 22). The air base is under American administration but located on German territory; thus, German laws apply without restriction (see (here, p. 5). A committee of inquiry of the German Bundestag concluded that Ramstein is probably not necessary for controlling the drones but nevertheless represents an essential component of the US infrastructure for warfare in Yemen (BT-Drs. 18/12850, p. 1353).

The complainants were Yemeni nationals who had lost their uncle and another relative because of a drone strike carried out in Yemen which was aimed at three suspected Al-Qaeda members who were standing in front of a mosque and were also killed. They see their case as exemplary of US warfare in Yemen, which they claim violates international law because it does not sufficiently observe the international legal requirements of distinction and proportionality. Germany is therefore obliged, within the scope of its duty to protect, to prevent actions contrary to international law originating from its own territory (para. 60 et seq.). As Yemen allowed the US to enter its territory to conduct targeted killing by drones the US activities do not infer with jus ad bellum.

The Federal Constitutional Court was thus confronted with the question whether possible violations by the US of jus in bello, in particular the principles of distinction and proportionality, give rise to a duty of protection on the part of Germany to the effect that the competent German authorities must exert influence on the US in such a way as to ensure that it acts in accordance with international law.

The Standard of the Federal Constitutional Court

According to the BVerfG there is, in principle, the possibility of an extraterritorial duty of protection arising in favor of foreign nationals living abroad (paras. 82 et seq.). This derives primarily from the Basic Law’s Friendliness towards International Law. This constitutional principle obliges Germany to always act in accordance with international law and to prevent violations of international law. At the same time, the Basic Law recognizes the existence of jus cogens norms. That is why, according to the constitution, Germany has a mandate to prevent violations of peremptory international law, i.e., above all human rights and international humanitarian law. This fundamental mandate to protect can be transformed into a duty to protect (para. 85). The conditions established for this transformation were, however, not met in the case of the Yemeni complainants.

Condition 1: Connection of Responsibility

First, there must be some kind of connection between the threat to fundamental rights and the German state authority (Verantwortungszusammenhang). Only then is it permissible to oblige the German state authority to uphold and protect fundamental rights violated by another state.  

However, such a connection cannot be assessed “on the basis of a definitive list of criteria, but [only] on the basis of an overall assessment based on the circumstances of the individual case” (para. 101, own translation). On the one hand, it is not necessary for the threat to be based on a decision-making measure originating from German territory, on the other hand, accidental contact with German territory is not sufficient to trigger a connection of responsibility (para. 101 et seq.). The threshold for a sufficient connection therefore lies between these two extremes, but the BVerfG does not provide any further details. However, the severity of the feared violation of international law may be taken into account (para. 102).

While the restriction of German responsibility and the need for a connection of responsibility is rather understandable, the BVerfG’s criterion of the severity of the violation of international law, which appears to be inversely proportional to the requirement of territorial contact, seems far-fetched. Conditions that are inversely proportional are by no means foreign to German constitutional and administrative law (think, for example, of the risk-assessment, which must be based on actual evidence to a lesser extent the greater the expected damage is). But the dogmatically interesting question of the sufficient existence of German responsibility seems to be confused here with the question of the scope of the duty. In other words, if there is a sufficient connection, Germany should have a duty to protect regardless of the expected severity of the violation, but the scope of this duty should then, of course, be determined based on the intensity of the violation. Using the extent of the violation as an argument for the connection of responsibility seems methodologically unsound, which is why it will be interesting to see whether and how the Federal Constitutional Court will use this criterion in future decisions.

Condition 2: Risk of systematic violation

Provided that there is a sufficient connection between a threat to fundamental rights and German state authority – which the Federal Constitutional Court expressly left open for drone missions in Yemen even though they partly take place on German territory (paras. 118 et seq.) – not every violation of international law is sufficient to trigger a duty to protect. Rather, “there must be a serious risk that the rules of international humanitarian law and international human rights law serving to protect life will be systematically violated.” (para. 103, own translation). Here, too, the Federal Constitutional Court wants to take into account the extent of the expected violation of international law (“systematically”), which once again makes it clear that the severity of the potential violation of rights cannot be correctly assessed at the level of the connection of responsibility.

Alliance Capability as a Universal Weapon

In principle, it seems possible that the Basic Law establishes higher requirements to extraterritorial protection obligations triggered by actions of foreign states than to protection obligations that relate exclusively to domestic cases. However, the constitutional concept of Germany’s alliance capability, which was invoked by the Federal Constitutional Court, is hardly a suitable justification for such a far-reaching restriction of the protection of fundamental rights.

First of all, the Federal Constitutional Court’s analysis of the relationship between the Basic Law and international alliances and organizations is correct. As evidenced by the clear wording of Art. 23–25 of the Basic Law in particular, as well as the discussions in the Parliamentary Council, it has always been a concern of the Basic Law to “promote the internationalization of political reality as actively as possible”[1] (own translation) and to enable Germany’s integration into the community of states for the purpose of global peace. Since Germany’s permission in favour of the US is based on the NATO Treaty, Art. 24(2) of the Basic Law is applicable which explicitly includes the authorization to participate in systems of mutual collective security (Systeme gegenseitiger kollektiver Sicherheit) and, according to prevailing opinion, permits participation in measures taken by such systems. Germany’s integration and participation in systems of mutual collective security, such as the NATO, is correctly classified as an objective inherent in the Basic Law.

At the same time, the legal consequences that the court derives from the constitutional requirement to ensure the capability to be part of such systems are probably contradictory, but in any case, not compelling.

Criticism of the Federal Constitutional Court’s Standard

The Constitutional Court’s view that it would damage Germany’s alliance capability if it had to remind its allies to comply with applicable international law because this would require “a permanent and comprehensive monitoring obligation, for example with regard to the actions of allied troops stationed in Germany” (para. 105, own translation) cannot be accepted. The idea of mutual trust created by such an alliance and the accompanying fundamental scepticism towards mutual monitoring and control obligations is still plausible, though. According to the principle of protection of legitimate expectations under international law, every state can generally rely on other states to act lawfully.

However, the court’s conclusion that mutual trust and aversion to mutual surveillance would legitimize acting only in the event of systematic violations of international law is unconvincing. First, determining whether there is a risk of systematic violations generally requires a much higher degree of surveillance and control than determining a single violation of international law. On the other hand, it is neither obvious from the wording of Article 24(2) of the Basic Law nor systematically comprehensible to use Germany’s alliance capability as an argument for reducing the protection of fundamental rights.

Peace through Tolerance?

This is due to the purpose of mutual collective security systems within the meaning of Art. 24(2) of the Basic Law. It expressly states that Germany’s membership of such a system can only be for the purpose of preserving peace. This refers to international peace, which, according to the Basic Law and the Kantian tradition[2], requires the containment of state power within a peace alliance. The Federal Constitutional Court itself has already ruled that the principle of friendliness towards international law, is not so strong that it can override other constitutional provisions (BVerfG 141, 1, para. 72 – Treaty Override; Payandeh, p. 612). The same must be true for the alliance capability which is closely linked to the principle of friendliness toward international law and likewise cannot be found in a single provision but must rather be regarded as a principle established through a systematic interpretation of certain provisions, inter alia Art. 24(2).

If one agrees that violating international law is likely to threaten peace, it is difficult to argue that being part of an alliance that is supposed to preserve peace should lead to greater tolerance vis-à-vis violations of international law. There are good reasons to assume that Article 24(2) of the Basic Law, by enabling Germany’s involvement in peace alliances, did not at the same time intend to legitimize actions by alliance partners that threaten global peace.

By assuming that fundamental rights protection obligations, i.e., the necessity of state action, only apply once the threshold of systematic violations of the law has been crossed, and by justifying this with the alliance capability, the BVerfG is turning the purpose of such alliances into its opposite. Instead of ensuring peace, Article 24(2) of the Basic Law now provides for greater tolerance of acts that disturb peace. Instead of preventing wars through legal dispute resolution, Article 24(2) now undermines Germany’s obligation to address and prevent violations of international law within such alliances because this could harm Germany’s alliance capability.

Let us assume for a moment that increased tolerance of violations of international law by alliance partners does not contradict the purpose of maintaining peace. Even then, the BVerfG’s argument would not be compelling. This is because the assumption that the existence of a duty to protect – which in practice is likely to be limited to exerting influence on the alliance partner acting in violation of international law – contradicts the alliance capability is nothing more than a claim which is not empirically proven. As the BVerfG points out, in the interests of its alliance capability, Germany is “dependent on being perceived as a respected, predictable, and reliable partner in the international community” (para. 105). It is absurd to suggest that accepting actions by allies that violate international law, even to the extent of systematic human rights violations, promotes Germany’s international respect. It cannot be denied that consistently tolerating such behaviour may contribute to Germany’s reliability, but this is hardly the kind of reliability that the Federal Constitutional Court has in mind and that is intended by the Basic Law.

Conclusion

Considering the above, the Federal Constitutional Court’s interpretation of fundamental rights protection obligations is by no means compelling. It exploits Germany’s alliance capability as a means of lowering fundamental rights protection standards. As already mentioned, it does not seem impossible that a standard for extraterritorial protection obligations can be derived from the Basic Law that differs from conventional, i.e., domestic protection obligations. However, Germany’s alliance capability should not be used as a basis for this if the impression is to be avoided that such alliances hinder peace rather than promote it.

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Joel S. Bella is a Research Associate at the Institute for International Law of Peace and Armed Conflict (IFHV) in Bochum. There he teaches in International Economic Law and conducts research on the human rights obligations of international financial institutions.

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[1] Rep. Schmid, Parliamentary Council, Main Committee, 6th meeting, Verbatim Report, pp. 69–74.

[2] The German Basic Law follows Kant’s idea of forming a peace alliance to preserve international peace which he articulated in 1795, see Kant, Zum ewigen Frieden (1795).