Drohnenangriffe und menschenrechtliche Sorgfaltspflichten – Der Fall Ramstein unter Berücksichtigung von EMRK und IPbpR

The legality of drone strikes has been a controversial topic in international law for years. German courts were confronted with the issue when relatives of the victims of a US drone strike in Yemen sued Germany over its failure to prevent the attacks carried out by the US via Ramstein Air Base. The Higher Regional Court of North Rhine-Westphalia ordered the German Government to ascertain and, if necessary, ensure through reasonable measures that the US's use of the Air Base was in compliance with international law, basing its decision on a protective duty arising out of Art. 2 para. 2 Basic Law obligating the German Government to protect foreign citizens against harm resulting from acts by a foreign state in violation of international law that originate from Germany. On appeal the Federal Administrative Court overturned this decision, declaring the transfer of data occurring on German territory too tenuous a connection to justify extending the protection of fundamental rights to foreign citizens in extraterritorial settings. In any case, it considered obtaining an assurance of conformity with international law from the US to be sufficient. However, both courts failed to take into account considerations of international human rights law. Building on the jurisprudence of the HRC and the ECtHR an argument can be made that due diligence duties under human rights law obligate the German Government to at least conduct an effective investigation into the legality of the drone killings. Such a duty ought to have been taken into account by the German courts.