Nevertheless, General Atomics only managed to delay the leasing agreements as their claims were ultimately dismissed. However, in June 2017 the plans to lease the Heron TP drones were further delayed by the parliament’s budget committee. At the time, committee members belonging to the Social Democratic Party (SDP) were sceptical of the deal, as the TP drones can potentially be armed. Despite opposition in German politics, the growing instability in the Middle East and Northern Africa and the recent terrorist attacks in Europe seem to have eased some objections regarding the use of armed drones. In June 2018, the German military acquired a 9-year lease of five Heron TP drones, for €500 million.
In May 2020, the German Federal Ministry of Defense launched a debate to explore the ethical, political and legal dimensions of armed drones as potential new equipment. The Ministry of Defense framed the debate on mostly technical issues around drones, as well as the protection of soldiers without further specifying which case scenarios would be considered as self-defense acts. Voices contextualizing the use of armed drones were hardly heard in the debate as organized by the Ministry of Defense. This lack of contextualization, especially in relation to civilian casualties caused by previous US and British drone strikes, was sharply criticized in the second debate, which took place in October that same year, and allowed for some more civil society participation.
In 2018, Germany also started to negotiate the acquisition of three high-altitude ‘Triton’ surveillance drones. In 2020, the German government refrained from buying the drones and chose to buy crewed aircraft instead.
Currently the Bundeswehr not only possess five types of drones exclusively used for intelligence, surveillance and reconnaissance (ISR)2 but Germany has also taken the lead in a joint initiative to produce a European rival for the American produced Reaper drone. This European twin turboprop Medium-Altitude Long-Endurance (MALE) drone is expected to be operational in 2025.
German policy regarding the use of drones capable of being armed remains ambiguous and at times contradictory. For example, the coalition treaty between the Christian Democratic Union (CDU) and the Social Democratic Party (SPD) written in 2014 states clearly that the government ‘categorically refuse[s] to participate in extrajudicial killings by armed drones in contravention of international law’. According to the report Armed Drones Policy in the EU Defense Minister Ursula von der Leyen confirmed the position of the coalition by ruling out the possibility of German drones being used for extrajudicial killings such as the US drone attacks in Yemen that caused civilian casualties. This does not exclude the possibility of German drones being used for combat as inspector General Volker Wieker told the Defense Committee of the Bundestag that the Heron TP drones will be ordered directly with ammunition. In the report ‘A Perspective on Germany’, Ulrike Esther Franke speculates that the Bundeswehr will indeed use armed drones in the near future based on a study on the use of drones in Afghanistan over the last twelve years. In the event of Germany procuring armed drones, it would be insufficient to only oppose the practice of extrajudicial killings, without developing a clear policy to ensure that the use of drones is in full compliance with IHL and IHRL.
Despite Minister Von der Leyen’s claim regarding German drones not being used for extrajudicial killings, the country’s complicity is not ruled out. For example, the largest US military air base in foreign territory, Ramstein, is located in in the German Rhineland-Palatine. Whistleblowers, such as Edward Snowden and former drone pilot Brandon Bryant, along with investigative journalists have exposed the central role of Ramstein Airbase, as well as the headquarters of U.S. Africa Command (AFRICOM), as a satellite relay station for US drone operations in countries such as Yemen, Afghanistan, and Pakistan. These operations often include drone strikes that in some cases inflict civilian casualties as was the case when a drone attack in 2012 struck a wedding celebration in Khashamir in eastern Yemen, killing two and leaving the survivors traumatized.
With the help of the European Center for Constitutional and Human Rights (ECCHR) and partner organization Reprieve, surviving members of the bin Ali Jaber family filed a complaint against the German government. Presiding judge Hildeund Caspari-Wierzoch of the Cologne administrative court dismissed the case on the grounds that the Court can only judicially review decisions by the executive branch if they are completely inactive or obviously insufficiently active to protect constitutional rights. However, this US ‘global war on terrorism’ should not be justifiable under German law, as the government has a third-party responsibility to prevent any unlawful US military action when it is supported from German territory.
“..the (German) Federal Government’s previous assumption that there were no indications of US violations in its activities in Germany against German law or international law is based on insufficient fact finding and is ultimately not legally viable.”
The court acknowledged the role of Ramstein in the US drone program and ordered Germany to take action. In accordance with this ruling, the German government would have to review the legality of US drone strikes in Yemen, make sure these strikes comply with international law, as well as include considerations of non-official reporting on drone strikes from, for example, NGOs.
On 25 November 2020, however, the Federal Administrative Court in Leipzig, overturned this landmark decision, by ruling that the diplomatic efforts of the German government with regard to US drone missions in accordance with international law would suffice. The ruling presents a serious setback for the plaintiffs, who are now examining the prospects of a constitutional complaint to the Federal Constitutional Court in Karlsruhe.
German transparency regarding the use of armed capable drones is not only obstructed by ambiguous policy but also by the decision to lease the Heron TP drones. Because the Heron TP drones are stationed in Israeli territory no European flight certificate is needed.3 Furthermore, the drones will be armed conform classified Israeli specifications, which means the German government is by law not at liberty to disclose any information regarding the arming of the drones.4 This construction not only allows the German administration to deal with its domestic critics, but it also obscures use of the drones. According to historian Wolfgang Krieger the deal ‘makes the issue of any future use of those “German” Heron TP even foggier, if only because Israel would obviously have to consent to any operation launched from its soil’.5
Besides the use of the Israeli Heron TP drones, German accountability in the sharing of intelligence with countries such as the United States and the facilitating of drones strikes remain a pressing issue. As mentioned above, the German administration has argued in the Somali case that they were not aware if and how their assistance was used to carry out drones strikes and that they did not possess enough information to determine that they were facilitating unlawful killings. German prosecutors tasked with verifying this claim refused to investigate the role of Ramstein, claiming that there were ‘insufficient indications that a criminal act had been committed’ and that the German government did not have a duty to prevent ‘illegal criminal acts by states who had authority to use facilities on German soil’. In other words, neither the government nor the prosecutors conducted an effective investigation in this case. In response, lawyers backed by Open Society Justice Initiative filed an appeal against the German prosecutors for not holding the government accountable. The grounds for appeal are abundantly clear, according to lawyers Natalie von Wistinghausen and Eberhard Kempf, who hope the decision will be reversed.
Besides hosting Ramstein Airbase, Germany further assists the Unites States drone program in sharing intelligence. Precaution has been taken to the extent that German authorities explicitly forbid ‘the use of German data for military operations, torture and killings’ with exception of the ‘case of an ongoing or imminent attack’. However, the disclaimer does not establish clear accountability but rather draws into German complicity as it allows the US to make its own interpretation of an ‘imminent threat’, which has been extremely controversial and contrary to international law.
In line with the call to control proliferation Germany has signed the Joint Declaration for the Export and Subsequent Use of Armed or Strike-Enabled Unmanned Aerial Vehicles on October 28th, 2016.26 By signing this declaration Germany has agreed to the regulation on the production, export and use of armed and drones capable of being armed to that end that international law, including human rights law, is upheld. However, similar to the German disclaimer discussed above, the Declaration remains ambiguous, as it does not specify how international and human rights law must be interpreted and applied, nor is the Declaration legally or politically binding. The follow-up process that should have developed strong international standards remains opaque and non-inclusive to civil society. Furthermore, on the point of controlled proliferation, Krieger points out that the deal made with the Israeli Aerospace Industries can contribute to the development, use and proliferation of drones outside European regulations.6
1 According to General Atomics, the German defense ministry had made its decision without allowing for sufficient competition, claiming that their Reaper MQ-9 was both cheaper and qualitatively superior ; Flight Global, ‘Germany to advance Heron TP deal after court ruling’ (2 June 2017) available at: https://www.flightglobal.com/news/articles/germany-to-advance-heron-tp-deal-after- court-ruling-437833/ ; Srdjan Cvijic and Lisa Klingenberg, ‘Armed drones policy in the EU: the growing need for clarity’, in: European Center for Constitutional and Human Rights, Litigating Drone Strikes: Challenging the Global Network of Remote Killing (May 2017) pp: 37, available at: https://www.ecchr.eu/en/documents/publications/articles/litigating-drone-strikes-eng-neu.html ; Ben Knight, ‘What Germany’s first armed drones could do’, Deutsche Welle (21 June 2017) available at: http://p.dw.com/p/2f82D.
2 Germany is using the Luftgestützte Unbemannte Nahaufklärungs-Ausstattung (LUNA), or airborne unmanned close reconnaissance system; the Kleinfluggerät für Zielortung (KZO), or small target‐locating drone; the Abbildende luftgestützte Aufklärungsdrohne im Nächstbereich (ALADIN), or airborne reconnaissance drone for close area imaging; the Mikroaufklärungsdrohne für den Ortsbereich (MIKADO) and the Israeli-built Heron 1. All the drones are German-made, except for the Heron 1 which had its first flown in 2010. Since the turn of the century these drones have been introduced in combat situations, supporting US airstrikes in Afghanistan for example. ; Ben Knight, ‘What Germany’s first armed drones could do’, Deutsche Welle (21 June 2017) available at: http://p.dw.com/p/2f82D.
3 Wolfgang Krieger, ‘The German Approach to Drone Warfare’, Intelligence and National Security 32.4 (9 May 2017) pp: 421.
4 Krieger, ‘The German Approach to Drone Warfare’, pp: 421.
5 Ibidem, pp: 421.
6 Similar constructs allow Germany, for example, to invest in the development of submarines armed with nuclear-tipped cruise missiles via the Israeli strategic submarine deterrent.