In a decision published yesterday, the Federal Constitutional Court of Germany became the latest and last German court to dismiss a claim for damages brought by survivors or relatives of casualties of a NATO attack on a bridge at Varvarin in Serbia. It is a pity that the decision is not, contrary to the practice of the Court in some other cases of international relevance, available in English. In fact, the Court has not even issued a press release in English (German press release).
The applicants had brought suit against the Federal Republic of Germany in the Regional Court of Bonn, alleging violations of international humanitarian law and requesting damages under international causes of action (treaty and customary law) and under the German law of State delict (Amtshaftung). They were unsuccessful in the Regional Court, the Regional Court of Appeal at Cologne and in the Federal Court of Justice, Germany’s supreme civil court (excerpts from all three judgments here).
The Federal Constitutional Court has now dismissed the applicants’ constitutional complaint. It held, in the briefest of outlines:
– There was no rule of customary international law affording individuals with a cause of action for violations of international humanitarian law. Cases in which damages had been paid had not ‘solidified’ (‘Verdichtung‘) into a customary rule. The ICJ has left the question undecided in the Jurisdictional Immunities case, at para. 108. So had the ILC in Article 33 (2) ARSIWA. A majority of domestic cases (for which the German court referred to an academic study) had denied any international cause of action (para. 43 of the Federal Constitutional Court case). These propositions were not in any doubt (para. 51).
– Since there was no rule of customary international law, the Court left undecided whether any such rule could have been a part of domestic law for the applicants (para. 44). (Article 25 of the German Basic Law makes customary law applicable ‘for the inhabitants of the federal territory’ and therefore arguably not for the applicants who at the relevant time were in Serbia – this does not strike me as a very plausible argument).
– Article 3 of Hague Convention (IV) on the Laws and Customs of War on Land and Article 91 of Protocol I to the Geneva Conventions did not give rise to any causes of action for aggrieved individuals. Any causes of action operated at the level of states (paras. 45 to 47).
– Even though the civil courts had made some errors cognisable under federal constitutional law, the Federal Constitutional Court held that they could not succeed in their claims even if their case was remanded:
— The civil courts had been wrong to afford the federal government a margin of appreciation as to the facts and the question of proportionality (in targeting).
— Even so, the standard of the duty of care that the German authorities owed the applicants had been reduced because German officials had only acted at a relatively abstract level of targeting. They had only played a role of the NATO decisions as to which objects were generally suitable for targeting, but not in the operational decision to attack or not to attack. What remained of the German authorities’ duty of care did not, the Federal Constitutional Court held, differ from the standard applied by the civil courts on their application of a margin of appreciation. Therefore, the Federal Constitutional Court further held that the civil courts would presumably arrive at the same result even on the correct legal approach.
— The civil courts had also been wrong to place the burden of proof as to the authorities’ knowledge of the relevant facts on the applicants, while allowing the respondent state the benefit of its military secrets. However, the Federal Constitutional Court found that, quite apart from the burden of proof, the government had made out its defence case in the civil courts. It was not conceivable how the applicants could have proved the opposite or that the government could have proved more.
The applicants have therefore now lost all the way through the German courts. They can now apply to the European Court of Human Rights. However, Sfountouris and Others v. Germany, a case about a claim for damages under Article 3 of Hague Convention IV (and domestic law) for the Distomo massacre, is against them in that court.