Is Germany liable in US drone killing of Iran’s Soleimani?

April 22, 2020

German prosecutors will not pursue a request by members of the Left party to investigate Chancellor Angela Merkel and key Cabinet ministers as accessories to the killing of Iranian General Qassem Soleimani in a US drone attack in Baghdad, Iraq, in January.

The decision, made in March but only revealed this week, ends one of the first tests of a 2019 court ruling in Münster that found that the government is obliged to “ascertain” whether the US is using its Ramstein Air Base in western Germany to violate international law. The government has appealed the ruling.

US military drones are usually piloted from within the United States, but satellite signals steering attacks in the Middle East are relayed via the US Air Force base. The former drone camera operator Brandon Bryant and other whistleblowers say the base is so vital to the US drone system that attacks would not be possible without Germany’s tacit consent.

Brandon Bryant (picture-alliance/dpa/B. v. Jutrczenka)

Whistleblower Bryant says the US drone war wouldn’t be possible without Germany

The January 3 assassination of Soleimani, one of Iran’s most powerful military leaders and the commander of the Revolutionary Guard’s extraterritorial Quds Force, caused a massive escalation of tensions between the United States and Iran, provoking a retaliatory missile strike on US forces in Iraq and increasing tensions throughout the Middle East. At the time, the German Foreign Ministry itself cautiously questioned the legality of the killing, noting that the United States had not offered “information justifying its reasoning.”

Read more: Germany split on path forward in US-Iran conflict

More scrutiny

Andreas Schüller, director of the International Crimes and Accountability program at the Berlin-based European Center for Constitutional and Human Rights, said it was good that Germany’s government is being forced to take a closer look at Ramstein, even if the criminal charges have been dropped.

“At least in Germany,” he said, “it should be reported that, every time a US drone strike happens, we can be 80% or 90% sure that Ramstein played a role.”

Iran: Burial of Soleimani (FARS/Z. Seidanlou)

Soleimani’s killing triggered an escalation of tensions between the United States and Iran

“This does at least make visible again the fact that a state like the US is technically able to commit the murder of senior political figures of other countries anywhere in the world,” Schüller added. “If other countries started doing that, we’d be returning to Wild West methods of who shoots the fastest, and diplomacy is shoved aside.”

In late February, eight parliamentarians from the Left party filed the charges against Merkel and other members of her government for neglecting to intervene. According to the accusation, which was controversial enough within the Left party for some leaders to distance themselves, the killing showed that the government has “clearly failed” to meet its constitutional obligations to uphold international law on Germany’s soil.

But federal prosecutors have now declined to launch an investigation. In a letter published on the website of Alexander Neu, one of the Left Bundestag members behind the charges, prosecutors said the German government did not have an obligation to actively do anything to prevent extrajudicial killings abroad, even if Ramstein had been used.

Paulina Starski, senior research fellow at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg, sees the charges mainly as a politicized attempt to increase the pressure on the government and said the prosecutors’ argument was sound. But, Starski said, last year’s court ruling means that the government can’t be let off the hook from a constitutional perspective — Germany must investigate what is happening at Ramstein.

“Doing absolutely nothing is not possible,” Starski said. “But the question we’re all trying to figure out is: what does ‘ascertain’ mean?” She added that she could imagine that more cases and charges could easily be filed in the future.

Map of US bases in Germany

‘The individual responsibility’

Heiko Sauer, a constitutional law professor at the University of Bonn, told DW that the court ruling has taken away the government’s argument that it doesn’t know anything about what the United States does at Ramstein. But, he said, the Left party’s charges were bound to fail.

Read more: US military in Germany: What you need to know

“My impression is that criminal law is not an appropriate medium to force this through,” Sauer said. “It’s difficult because under criminal law in this case, you would need to prove the individual responsibility of a certain person for a crime that someone else committed.”

Sauer said a more fruitful legal course of action might be for the victims of such attacks to pursue compensation from Germany. The government voluntarily granted compensation to families of the about 90 people killed by a US fighter plane in Kunduz, Afghanistan, in 2009 while responding to a call from German forces in the area.

Complicating the issue is the fact that, from the courts’ point of view, and despite the testimony of whistleblowers such as Bryant, it remains unclear what exactly goes on at Ramstein, which helps Germany’s government stonewall media. It appears clear that the drones in the Middle East are not controlled at Ramstein, nor are orders issued there. And yet, according to Schüller, Ramstein is certainly a key element of the drone system, as it is one of the very few US Air Force bases outside the United States equipped with a “Distributed Common Ground System” — a hub for intelligence data.

Read more: Germany spends millions of euros on US military bases

But, Schüller said, the US military has been working to make itself less dependent on the base, and has built more data relay stations since then. In fact, it is not clear to him that information was relayed via Ramstein in the killing of Soleimani. “Probably no one knows that except for the US itself, and only if they can trace the data streams, as they come from various sources,” he said.

As it stands, US secrecy helps Germany maintain its own plausible deniability, even if more court cases are likely.

The Ramstein air show disaster

Pierced heart

At the Ramstein airshow in 1988, the Italian air squad Frecce Tricolori attempted a maneuver called the “pierced heart” — a solo pilot intersects the course of five other jets flying directly towards each other at 600 kilometers-per-hour (370 miles-per-hour). The attempt failed disastrously as three planes collided in the air.

The Ramstein air show disaster

Crowd catastrophe

After the collision, the plane crashed into the runway, sending its fuselage and a resulting fireball of jet fuel hurtling towards the crowd of 300,000 people. One of the other planes crashed beside the runway and the pilot died on impact. The third crashed into a medical helicopter — the pilot ejected but was killed on the runway before his parachute deployed.

The Ramstein air show disaster

Scores killed

The plane crash killed 70 people (including the three pilots) and injured 1,500 others. The deceased are honored at a memorial outside of the airbase in Ramstein. Those mutilated by the debris or disfigured due to third-degree burns were only financially compensated after years of legal battles with authorities.

The Ramstein air show disaster

Italy responsible

The overall legal response to the disaster was underwhelming for many victims. The lead attorney responsible threw in the towel because, according to NATO rules, Italian authorities were responsible.

The Ramstein air show disaster

Split investigation

One year into its probe, the German parliament’s Ramstein committee of inquiry was split into two factions that could not be reconciled: The Social Democrats (SPD) and a faction of Christian Democrats (CDU/CSU) and Free Democrats (FDP). The committee issued two final reports, with the SPD saying the disaster was avoidable and the CDU/CSU and FDP saying the Italian pilot had fallen unconscious.

The Ramstein air show disaster

Air shows

Immediately after the disaster, Bundestag politicians were unanimous in barring all airshows in Germany. It didn’t take long for that mindset to change, with some arguing that tax payers had a right to see their country’s armed forces. Germany has held numerous air shows since the 1990s.

The Ramstein air show disaster

‘We cannot undo what happened’

A memorial service marked the 30th anniversary of the airshow disaster. In attendance was Malu Dreyer, Rhineland Palatinate’s state premier. “We cannot undo what happened, but we can remember, stand together and support each other,” she said.

Author: Davis VanOpdorp