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Contribution to Collected Edition

Collateral Killings of Civilians: Reflecting Recent German Judgments on Co-responsibility for Foreign Drone Attacks


Eser,  Albin
Criminal Law, Max Planck Institute for the Study of Crime, Security and Law, Max Planck Society;

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Eser, A. (2021). Collateral Killings of Civilians: Reflecting Recent German Judgments on Co-responsibility for Foreign Drone Attacks. In K. Ghanayim, & Y. Shany (Eds.), The Quest for Core Values in the Application of Legal Norms: Essays in Honor of Mordechai Kremnitzer (pp. 237-257). Cham: Springer.

Cite as: https://hdl.handle.net/21.11116/0000-0009-75DF-9
The chapter discusses recent judgements of higher German Courts, in which the Federal Republic of Germany was found co-responsible for American drone attacks that had been supported by a satellite relay station operated by the United States on German territory. In particular focussing on a judgment of the Oberverwaltungsgericht für das Land Nordrhein-Westfalen (OVG NRW) in the so-called Yemen case, the author discusses the court’s judicial findings through the following steps: After a brief description of the facts of this case, as well as some of its procedural peculiarities (Sect. 2), the compatibility of fatal airstrikes supported from German territory with constitutional and international humanitarian law will be examined (Sect. 3). Since the Court casts doubt on this compatibility, the question of judicial authority to adjudicate violations of law by military operations arises (Sect. 4). This question having been answered in the affirmative, Germany’s responsibility, as a state, to protect life is at stake (Sect. 5). As also touched upon in the same court’s Somalia case, in addition to the public obligation to prevent unlawful fatal airstrikes, civil liability for damages must also be considered (Sect. 6). The same applies to the criminal responsibility of individuals involved in unlawful airstrikes (Sect. 7). Finally, a principled discussion challenging the mainstream assumption that lethal military actions are lawful as long as they are not forbidden will follow (Sect. 8).