The German Federal Constitutional Court has rejected constitutional complaints lodged by Serbian citizens in relation to a NATO air strike in the Serbian city of Varvarin on 30 May 1999.
The claimants were Serbian citizens who brought an action against the Federal Republic of Germany seeking pecuniary and non-pecuniary damages for their own injuries and for the deaths of their relatives, caused by the destruction of the bridge on the River Morava in Varvarin, Serbia. The bridge was destroyed by missiles fired by two NATO aircrafts which killed ten people and injured thirty, all of whom were civilians. German reconnaissance aircrafts participating in NATO operations in the Federal Republic of Yugoslavia were not directly involved in the air strike. However, the claimants sought to hold Germany legally accountable for not taking action to prevent the bridge being included on NATO’s target list.
The claimants sought to base their claims for compensation on both international law and German tort law, arguing that the lower courts’ interpretation and application of these bodies of law had violated their constitutional rights.
However, as regards international law, the Federal Constitutional Court held that there was no rule of customary international law allowing an individual to bring an action against a State for damages caused by its alleged breach of international humanitarian law. Such a claim could be brought against a State only by the claimants’ home State (paras. 40-43). Furthermore, the Court held that no such direct individual claim for compensation could be derived from Article 3 of the Hague Convention IV respecting the Laws and Customs of War on Land nor Article 91 of the Additional Protocol I to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (paras. 45-47).
As regards German law, despite ultimately rejecting the appeals, the judges criticised the lower courts’ recognition of a margin of appreciation allegedly enjoyed by the Federal Government with respect to its power to include targets on strike lists and the use of its veto powers to block NATO’s inclusion of a specific target on the list. According to the judges, in light of the constitutional guarantee of effective judicial protection of individual rights, the question of whether an object constitutes a legitimate military target is not a political one and therefore does not escape judicial control. The interpretation and application of the relevant rules of international law (most notably Article 51 of the above-mentioned Additional Protocol I) are, according to their ruling, a task for the Courts. In exercising this control, the courts do not trespass the boundaries of what the judiciary is entitled to do (para. 55).
The Court’s judgment could potentially have wider ramifications on the extraterritorial application of the European Convention on Human Rights. Should the claimants lodge an application to the European Court of Human Rights, as hinted at by the German media, the European Court will have to revisit the case of Banković and Others v. Belgium and 16 Other Contracting States which concerned a NATO air strike against a public broadcasting building in Serbia. The Grand Chamber had unanimously declared the application inadmissible, holding that the applicants and their deceased relatives were not “within the jurisdiction” of the respondent States within the meaning of Article 1 of the Convention. However, it has been argued that different models of jurisdiction have been employed by the European Court of Human Rights in subsequent cases (see inter alia Issa and Others v. Turkey; Öcalan v. Turkey; Al-Saadoon and Mufdhi v. the United Kingdom; Medvedyev and Others v. France; and Al-Skeini and Others v. the United Kingdom). In view of its post-Banković case law, the European Court of Human Rights might use the Serbian case as a point of departure from the geographical model of jurisdiction developed in Banković, and towards a functional model of jurisdiction (see Judge Bonello’s concurring opinion in Al-Skeini).
Menelaos Markakis is a DPhil student at the University of Oxford.