Use of lethal force by German armed forces in international operations

Yearbook article 2016, Max Planck Institute for Foreign and International Criminal Law, Freiburg
Author: Carl-Wendelin Neubert

June 10, 2016

What are the legal boundaries for combating terrorist threats and asymmetrical warfare in international operations for German armed forces? What are the consequences for systems of international security? A study at the Max Planck Institute for Foreign and International Criminal Law analyzes the prerequisites for and limits on the extraterritorial use of lethal force on the basis of public international law and German constitutional law.

Use of lethal force as a current problem in international relations

The use of lethal force has always been a given factor in martial conflict. Only in recent times in Western democracies – and in Germany essentially since the devastating air assault near Kunduz on 4.9.2011 ordered by Bundeswehr Major Georg Klein – has use of lethal force by their military and security forces in extraterritorial deployments become a focus of public attention. Throughout the world the forces deployed by Western democracies find themselves confronted with asymmetrical, terrorist warfare. To fight these wars, they are turning to means that are the subject of both political as well as legal dispute. This is illustrated with particular clarity by the targeted killing of suspected terrorists as practiced particularly by US forces since 11 September 2001 and by the Israeli security forces.

Expanding the options for state action under the “law of war” as a new dimension in modern security architecture?

From a legal perspective, this development is of importance above all in consideration of the more and more indistinct boundaries of traditional state interventions and the discussions surrounding a new security architecture in an age of growing instability. In many legal systems, particularly serious forms of criminality – especially terrorism – are no longer being combated primarily by means of criminal law or active defence law (in Germany, police law), but more often also with recourse to the international law of war (i.e. the law of armed conflict). This “law of war” approach – to be observed particularly in US counter-terrorist activities – expands state options materially while precluding the constitutional safeguards afforded by criminal law or active defence law.

Use of lethal armed force under international law and German constitutional law

Against this background, a study has been conducted at the Max Planck Institute for Foreign and International Criminal Law to analyze the preconditions for and limits on the use of lethal armed force by organs of German sovereign power operating abroad. The central question is: Under what conditions is the use of lethal armed force by German forces abroad lawful?

The study distinguishes between two material aspects: On the one hand, the legality of deploying military and police operations abroad; and on the other, the legality of the actual use of weapons abroad, that is to say, occasioning specific harm. The two aspects are analyzed both against the background of international law, and in consideration of German constitutional law. By making this distinction, the differing points of reference of the applicable law can be precisely illustrated; this in turn facilitates a representation of the relationship between various sets of norms and a sound systemization of the subject of study. In view of the current status of research, the emphasis of the study is on analyzing the legality of the actual use of armed force.

Legality of the actual use of armed force

The study shows that both international law and German law contain specific material preconditions and limitations which take in to account the factual situation at the place of deployment. However, the structural approaches of international law and German law differ:

International law makes a categorical distinction between normality and armed conflict: In a normal situation it deems the use of lethal armed force to be subordinate to the relevant human rights – as defined in the International Covenant on Civil and Political Rights, as well as in regional human rights conventions such as the ECHR. The state use of lethal armed force as ultima ratio is accordingly restricted to self-defence or emergency, the otherwise impossible apprehension of escaped violent criminals and the pacification of serious internal disturbances. In an armed conflict situation, on the other hand, the particular provisions of the law of armed conflict apply – as contained in the Geneva Conventions and their Additional Protocols 1 and 2as well as corresponding customary international law. An armed conflict is deemed to exist in the event of any form of military conflict between two or more states, as for example in the 2003 war in Iraq, as well as in the case of internal armed conflicts of substantial duration and intensity, as for example in the civil war in Syria. In comparison with the normal situation, the law of armed conflict restricts the use of armed force to a far lesser extent:

Thus, the use of lethal armed force against combatants is permitted under almost all circumstances and even the fundamentally prohibited killing of civilians is permissible if unavoidable and not excessive in the context of collateral damage occasioned in attacks on military targets.

German law requires that actual use of lethal force by German armed forces abroad must be subject to the relevant basic rights conveyed by the Basic Law, or constitution.  These are binding – as the study shows – on German forces not only in domestic matters, but also in cross-border or extraterritorial deployments. This does not, however, mean that foreign and domestic situations must of necessity be treated equally. It is rather the case that consideration must be given to the extent to which the situation abroad differs from the normal situation in Germany. The particular circumstances prevailing at the foreign location play a decisive role – especially the security situation, the available active defence capabilities, the number of legally protected interest groups at risk and the threat posed by hostile forces. The further the actual situation abroad differs from the domestic norm in respect of these criteria, the greater the justification in intervening in basic rights. This means in particular that, in situations which largely correspond with the domestic norm, the use of lethal force is subject to the extremely strict rules governing the use of firearms by the police in Germany. This applies for example to deployments of German armed forces in former conflict zones that are now at peace, such as present-day Kosovo, or to a hypothetical deployment of Federal police officers to put an end to a terrorist attack such as happened on 13.11.2015 in Paris. On the other hand, situations that differ qualifiably from the domestic norm may justify restrictions on basic rights to a much larger extent – including the right to life. This applies particularly in armed conflicts – for example to the current German army presence in Afghanistan, as armed conflicts are typically distinguished by the particularly intensive and unpredictable threats posed to a large number of legally protected interest groups by multiple attackers.

Irrespective of their differing approaches, in terms of the material requirements for the use of lethal armed force by German forces operating abroad, there are no significant differences discernible between international law and German law.

Requirements for legal authorizations allowing for the use of lethal force

Both the relevant human rights conventions under the umbrella of international law and Germany’s Basic Law require a basis in law for the actual use of state-authorized lethal force. Under international law this is recognized as a general precondition for any conduct that might impinge on human rights. Under German constitutional law, the requirement stems from a statutory reservation which calls for such interventions to be authorized under parliamentary law, and which in view of its strict terms and its orientation towards the protection of basic rights, merits particular observance.

The study shows that the fundamental requirements of this statutory reservation also have a claim to application in the case of international deployment of German armed forces. In terms of content, the requirements imposed by this statutory reservation in respect of the regulatory scope and density of the authorizations for the use of lethal force are oriented towards the substantive legal position in the respective foreign scenario. They are therefore dependent on the extent to which basic rights – in particular the right to life as per Art. 2 Para. 2 Sentence 1 of German Basic Law – might typically be restricted in the situation to be addressed. In making exhaustive use of their scope for legislative action, lawmakers are permitted to create legal bases that reflect the particular features of the foreign situation. Against this background, statutory authorizations for foreign operations which typically entail a substantially higher level of risk, as for example in the case of armed conflict, may impose requirements for the use of lethal force that are far less stringent than would apply as the legal bases for interventions in basic rights in domestic situations or normal situations abroad. The precise configuration is – within certain limits – subject to the lawmakers’ prerogative.

Applying this standard to existing bases in international law, constitutional and non-constitutional law reveals that the overwhelming majority of existing legal bases do not bear comparison with the constitutional law requirements for the use of lethal force by German armed forces abroad. Federal lawmakers must therefore create legal authorizations that, on the one hand, satisfy the requirements of the law; yet on the other hand, take adequate account of the particular circumstances of the foreign operation. 

Outlook: Security architecture tinged by the law of war?

With regard to the question posed at the outset of the importance of the law of armed conflict in combating particularly serious forms of crime including terrorist threats, this means that the “law of war” approach can be justified under both international law, as well as under Germany’s Basic Law, albeit exclusively in the field of armed conflict. Restrictions on the constitutional guarantees and safeguards surrounding the normal situation are permissible only given the particular threat scenario posed by such conflicts, since much more extensive authorized interventions are then required to ensure the effective protection of legal interests.

The “law of war” approach thus has a place in the modern preventive security architecture. However, it remains closely restricted in terms of the preconditions for its application; it is subject to standards of proportionality and control; and it requires careful observation in respect of constitutional safeguards. In addition, the currently existing statutory bases in German law are unsatisfactory and must be improved.

Neubert, C.-W.

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