Forex Dataset

According to Art. 34 Basic Law in conjunction with § 839 Civil Code, the liability of the state is attached to the personal and civil liability of state officials. They are liable for an intentional or negligent breach of official duties with regard to third parties (see § 839 para. 1 1st sent. Civil Code). In principle Art. 34 Basic Law transfers the personal liability of state officials onto the state which is in the end the relevant entity obliged to compensate the injured party. Besides this “transfer function”, Art. 34 Basic Law institutionalizes the minimum core of state liability which is a crucial element of the German rule of law. The key to triggering state liability is to establish that an official duty with regard to third parties has been violated. Sources of such “official duties” are potentially all norms which form an inherent part of the German legal order. They stem most importantly from fundamental rights (Art. 1 to 19 Basic Law) but also homeowner database guarantees of the ECHR, which forms part of the German legal order by force of its transformation, as well as rules of humanitarian law which in their customary dimension become automatically incorporated into the German legal system by Art. 25 Basic Law. “Official duties” refer to “third parties” if their objective is the protection of individuals. Hence, until now it has been purported by many voices in scholarship and presupposed within various court judgments that a breach of ius in bello norms by German state authorities may lead to state liability under Art. 34 Basic Law, § 839 Civil Code if these norms protect and entitle the individual. The Court rejects this understanding within its landmark judgment by finding that actions within armed conflicts are not covered by the scope of the state liability regime per se.

The Ratio Dedicendi – A Critical Close-Up

The Court asserts firstly that international law does not confer compensatory claims to individuals for the violation of ius in bello norms and treats questions of compensation as a purely interstate matter as Art. 91 of the First Protocol to the Geneva Conventions suggests. The individual is only protected indirectly via the principles of diplomatic protection (para. 16 et seq.). At the same time the Court stresses, however, that while international law does not require states to award compensatory claims to individuals for the violation of humanitarian law within their legal orders, it does not prevent them from doing so (para. 21). Even if it is assumed that the Court gives a correct account of the state of international law de lege lata here, it is unfortunate that it remains rather ignorant of the “turn to the individual” and its empowerment on the international plane which departs from the concept of mediation (see generally Anne Peters, Beyond Human Rights, CUP 2016).

The Court then turns to possible grounds for compensation in national law: Whilst it acknowledges that the wording of Art. 34 Basic Law in conjunction with § 839 para. 1 Civil Code does not exclude actions of the military within armed conflicts from its scope (para. 22), it assumes that the state liability regime would only apply in cases of “ordinary administrative action” thereby limiting its scope teleologically to “times of peace”.