Is Germany liable in US strike on Iran general?

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.

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."

"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.

'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.

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