Aerial Drone Deployment Case

CourtUnspecified Court (Germany)
Docket Number(Case No 3 BJs 7/12–4)

Germany, Federal Prosecutor General.

(Case No 3 BJs 7/124)

(Aerial Drone Deployment on 4 October 2010 in Mir Ali/Pakistan

(Targeted KIlling in Pakistan Case)

War and armed conflict Non-international armed conflict Terrorism Combatant status Targets Air strike from unmanned drone Conflicts in Afghanistan and Pakistan border region Whether separate conflicts Status of conflict War on terror Whether Central Intelligence Agency officers controlling drone combatants Whether persons attacked by drone combatants or civilians Necessity and proportionality

Jurisdiction Universal jurisdiction Passive personality principle German national killed by United States drone strike in Pakistan Whether killing within jurisdiction of German authorities The law of Germany

Summary:1The facts:On 4 October 2010, a German citizen was killed by a drone strike in North Waziristan in the Federal Administered Tribal Areas (the FATAs) on the Pakistan side of the border between Pakistan and Afghanistan. After US and allied forces overthrew the Taliban regime in Afghanistan in November 2001, the Pakistan border region became the most important haven and staging area for Islamist militants fleeing from Western Afghanistan. As cross-border attacks by militant groups against the international troops stationed in Afghanistan (ISAF) intensified, the United States and Pakistan began military operations in the FATAs. The US employed unmanned aerial vehicles known as combat drones. The bulk of these aerial drone deployments targeted leading members of the Taliban, Al Qaeda, the Haqqani network, and the Islamic Movement of Uzbekistan (IMU)/Islamic Jihad Union (IJU), as well as these groups' strongholds and training centres. All of these groups were united in their opposition to the presence of US and ISAF troops in Afghanistan and there were extensive overlaps in their respective personnel.

On 4 October 2010 an aerial drone fired a rocket at a building in the town of Mir Ali in North Waziristan killing five people, including an Iranian national and three were unidentified local people. The Iranian national was a member of the so-called Hamburg Group, as was his wife. They had left Hamburg on 4 March 2009 bound for Pakistan to join up with insurgent organizations in Pakistan and to take part in the fighting there. The German national had left Germany in late July 2010. During his stay in North Waziristan, he had joined a number of insurgent groups in succession and by mid-September he was involved with Al Qaeda, or at least the outer circles thereof. He participated in combat training and was taught how to handle weapons. The purpose of the meeting being held at the time of the drone strike was to discuss and expedite plans for a suicide-bombing attack to be carried out by the German national against a military installation of the ISAF forces. The planning of the mission was so advanced that a date had already been set for the operation.

On 10 July 2012, the Federal Prosecutor General opened a criminal investigation against persons unknown in respect of the death of the German national.

Held:The criminal proceedings were terminated pursuant to section 170(2) of the German Code of Criminal Procedure for want of sufficient reasons to believe that a crime was committed.

(1) The German Code of Crimes Against International Law (VStGB) was applicable pursuant to its section 1 of the Code (principle of universal jurisdiction). The German Criminal Code (StGB) was applicable pursuant to its section 7(1) (principle of passive personality) (p. 740).

(2) At the time of the drone strike, there existed at least two separate noninternational armed conflicts. One was between the government of Pakistan and non-State armed groups operating in the FATAs (including Al Qaeda). Another one was between the Afghan Taliban and affiliated groups and the government of Afghanistan, as supported by ISAF forces, a conflict which spilled over into the territory of Pakistan (pp. 7414).

(3) It was impossible to attribute the aerial drone deployment under examination to just one of these two armed conflicts (p. 744).

(4) Both the internal Pakistani conflict as well as the military clashes in Afghanistan constituted a non-international armed conflict, since they were not being carried out between States but between government forces on the one hand and organized groups on the other. The conflict classification did not change because of the support that the governments of Pakistan and Afghanistan received from other States as co-participants in the conflict (pp. 7445).

(5) The determination of the existence of armed conflicts was limited to the situation in the Pakistani FATA region during the years 2009 and 2010. It was neither appropriate nor necessary to rely on the notion of a War on Terror under which the rules of armed conflict applied to any and all antiterror operations without any territorial limitation whatsoever (pp. 7456).

(6) The drone strike in question occurred in connection with the identified armed conflicts (p. 746).

(7 The drone strike was not directed against the civilian population as such or against individual civilians (section 11(1) first sentence number 1 VStGB). In a non-international armed conflict, those are civilians who are not part of government armed forces or of an organized armed group. A person was to be regarded as a member of such group if his sustained and/or permanent function consists of the direct participation in hostilities (continuous combat function). Such a person could be targeted also at a time when he or she was not directly taking part in hostilities (pp. 7467).

(8) The persons killed through the drone attack were not civilians under the law of non-international armed conflict in light of their continuous combat function and the same was true for the male survivors of the attack (pp. 7489).

(9) The attack did not violate the principle of military necessity which might have required that capture take precedence over killing so long as this would not increase the risk for the military units involved or the civilian population (p. 749).

(10) The attack did not violate the principle of proportionality under the law of non-international armed conflict (section 11(1) first sentence number 3 VStGB) (pp. 74950).

(11) The applicability of the StGB was not completely superseded by the VStGB, because of the connection of the attack with an armed conflict (pp. 7502).

(12) The Federal Public Prosecutor General was competent to apply the StGB to the case at hand because it involved conduct in connection with an armed conflict (pp. 7524).

(13) The drone attack satisfied the objective and subjective elements of the crime of murder (section 211 of the StGB). It was, however, permissible under the law of non-international law conflict and therefore justified as a matter of German criminal law (pp. 7545).

(14) International humanitarian law did not provide for any general prohibition of the deployment of aerial drones and the use of drones did also not breach the prohibition of perfidy (pp. 7557).

(15) US Central Intelligence Agency operatives, who were exercising operational responsibility for the aerial drone deployments, qualified as armed forces for the purposes of the law of non-international armed conflict (pp. 75760).

(16) International humanitarian law did not provide for any general prohibition of the targeted killing of persons in an armed conflict (pp. 7601).

The following is the text of the decision of the Prosecutor:

Pursuant to the directions of 10 July 2012, investigation proceedings were launched against persons unknown based on the suspicion of a criminal offence having been committed in violation of the Code of Crimes Against International Law (Vlkerstrafgesetzbuch, VStGB) along with other offences; these proceedings have been terminated pursuant to section 170(2) of the Code of Criminal Procedure (Strafprozessordnung, StPO) in light of the findings and the legal arguments set out below in further detail.

A. FACTUAL SOURCES

On 11 October 2010, the Federal Prosecutor General initiated a monitoring and verification procedure in response to press reports about a military operation involving the deployment of an aerial drone1 on 4 October 2010 in North Waziristan/Pakistan, in which German citizens, amongst others, were alleged to have been killed. In order to further clear up the matter, various factual enquiries were first addressed to the Federal Criminal Police Office (Bundeskriminalamt, BKA) and to the Federal Intelligence Service (Bundesnachrichtendienst, BND). The reports received in response to these enquiries confirmed that B.E., a German citizen from the town of Wuppertal born on in had in fact died during said military operation. In order to verify that armed conflict was taking placing in the affected regionwhich would confirm the Federal Prosecutor General's jurisdiction with regard to prosecuting possible criminal offences under the Code of Crimes Against International Law (VStGB)analyses of the situation in Pakistan were commissioned from the Heidelberg Institute for International Conflict Research (Heidelberger Institut fr Internationale Konfliktforschung, HIIK) and from the German Institute for International and Security Affairs (Stiftung Wissenschaft und Politik, SWP); these were delivered at the end of May 2011. On 5 May 2011, at the request of the Federal Prosecutor General, the Federal Foreign Office (Auswrtiges Amt, AA) forwarded its own findings concerning the situation in the PakistaniAfghan border region. On 30 June 2011, furthermore, the Federal Intelligence Service provided its opinion on this complex of topics, having been commissioned to do so by the Federal Prosecutor General. In order to supplement the aforementioned analyses and reports, the following materials were

consulted and studied with respect to the situation given in Pakistan at the time of the incident: the corresponding annual publications of the...

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