On 16th February 2021, the European Court of Human Rights (ECtHR) rejected a complaint made against Germany for its refusal to prosecute an officer who had ordered a deadly bombing in 2009 of two fuel tankers in northern Afghanistan.
Background
Following the attacks of 11 September 2001, the U.S. jointly with the U.K. launched military operations in Afghanistan. This operation was known as Operation Enduring Freedom. It included the destruction of terrorist training camps and infrastructure as well as the capture of al-Qaeda leaders. In November 2001, the German Parliament authorized the deployment of up to 3,900 German soldiers as part of the military operation. The contingent included 100 soldiers of the German Special Forces, who were involved in counterterrorism operations in Afghanistan.
In December 2001, twenty-five prominent Afghan leaders met in Bonn, Germany, under the auspices of the UN to decide on a plan for governing the country. They eventually set up an Afghan Interim Authority and choose its leader. The participants of the Bonn Agreement requested the assistance of the international community in maintaining security in Afghanistan and envisaged the establishment of the International Security Assistance Force (ISAF). ISAF was subsequently established by the UN General Assembly on 20th December 2001. Shortly afterwards the German Parliament authorized the further deployment of German armed forces as part of ISAF. On 11th August 2003, NATO assumed command of ISAF, and ISAF’s mission was expanded beyond the Kabul area. After NATO assumed command of ISAF, ISAF Headquarters (ISAF HQ) and Commander ISAF (COMISAF) were placed under the command of the NATO Allied Joint Force Command and the NATO Supreme Allied Commander Europe respectively.
Under ISAF HQ there were five Regional Commands (RCs) that coordinated all regional civil-military activities conducted by the military elements of the Provincial Reconstruction Teams (PRTs) in their respective areas of responsibility. While ISAF HQ/COMISAF retained operational control, the PRTs were placed under the command – in the form of tactical control – of the respective RC. German troops were deployed under RC North, which was led by Germany. At the relevant time, the Commander of RC North was the German Brigadier-General V., PRT Kunduz, which was part of RC North, was commanded by the German Colonel K.
On 3rd September 2009 insurgents hijacked two fuel tankers which became immobilized on a sandbank near the Kunduz River, around seven kilometres from the military base of the PRT Kunduz. The insurgents enlisted people from nearby villages to help them move the tankers. At around 8 pm, PRT Kunduz was informed of the hijacking. Colonel K., the German army officer in command of PRT Kunduz, fearing an imminent attack, gave the order to bomb the fuel tankers, which were still immobilized. The airstrikes carried out that night destroyed both tankers and killed several people, both insurgents, and civilians, including the applicant’s two sons, Abdul Bayan and Nesarullah, aged 12 and 8 respectively.
On the morning of the 4th of September 2009, Brigadier-General V., who was in charge of the RC to which PRT Kunduz was attached, sent an investigation team of the German military police to Kunduz to support PRT Kunduz in its investigation. On 5th November 2009, the Dresden Public Prosecution General requested the office of the Federal Prosecutor General to review the possibility of taking over the prosecution of the case in light of possible liability under the Codes of Crimes against International Law. By this time the Federal Prosecutor General’s office was already in the process of establishing whether it had competence, having initiated a preliminary investigation on the 8th of September 2009.
On 12th March 2010, the Federal Prosecutor General opened a criminal investigation against Colonel K. and Staff Sergeant W., who had assisted Colonel K on the night of the airstrikes. On 16th April 2010, the Federal Prosecutor General discontinued the criminal investigation due to lack of sufficient grounds for suspicion that the suspects had incurred criminal liability under either the Code of Crimes against International Law or the Criminal Code. He determined that the situation in the northern part of Afghanistan, where the German armed forces were deployed, amounted to a non-international armed conflict within the meaning of international humanitarian law. In his view, that situation triggered the applicability of international humanitarian law and the German Code of Crimes against International Law. The Federal Prosecutor General concluded that Colonel K.’s liability under the Code of Crimes against International Law was excluded because the colonel didn’t have the necessary intent to kill or harm civilians or damage civilian objects. Liability under the Criminal Code was also excluded because the lawfulness of the airstrikes under international law served as an exculpatory defence.
In his discontinuation decision, the Federal Prosecutor General considered that two aspects, in particular, had to be clarified: Colonel K.’s subjective assessment of the situation when he had ordered the airstrikes and the exact number of persons who had suffered death or injury as a result. According to Colonel K.’s account, he had assumed that only Taliban insurgents and no civilians had been located near the fuel tankers when he had ordered the airstrikes. In the Federal Prosecutor General’s view, this account was corroborated by a large number of objective circumstances, the statements of the persons who had been present at the time of the events, and the video footage from the aircraft before and during the airstrikes. The Prosecutor General further noted that the people present at the command post had all credibly testified that they had operated on the assumption that only insurgents and no civilians were present at the location.
Investigation(s) and trials in Germany thus far
On 12th April 2010, Mr Hanan, through his legal representatives, filed a criminal complaint with the Federal Prosecutor General regarding the death of his two sons. He also requested access to the investigation file. By a letter dated 27th April 2010, the Federal Prosecutor General informed the applicant’s representative that the criminal investigation had been discontinued. On 15th November 2010, the applicant filed a motion with the Düsseldorf Court of Appeal seeking that public charges be brought against the suspects, or in the alternative, that the competent public prosecutor continues investigating the matter to determine their liability under the Criminal Code. He submitted, in particular, that certain additional investigative measures were required.
On 13th December 2010, the Federal Prosecutor General submitted his observations, taking the view that the motion should be dismissed as inadmissible for failure to comply with the formal requirements or, in the alternative, as ill-founded. He maintained that all the necessary investigative measures had been carried out. On 16th February 2011, the Düsseldorf Court of Appeal dismissed the applicant’s motion to compel public charges as inadmissible for failure to comply with the formal requirements.
Mr Hanan then lodged two constitutional complaints with the Federal Constitutional Court of Germany – the latter complaint encompassing the earlier one – alleging that the criminal investigation had been ineffective. On 8th December 2014, the Federal Constitutional Court refused to admit the constitutional complaint about adjudication insofar as it concerned access to the investigation file. On 19th May 2015, it refused to admit the complaint about adjudication insofar as it concerned the effectiveness of the criminal investigation, finding that it was in any event ill-founded. In the Constitutional Court’s view, the Federal Prosecutor General had neither misjudged the importance of the right to life and the resulting obligations of the State to protect it nor the requirement to carry out an effective investigation into deaths as defined by the case-law of the Federal Constitutional Court and the European Court of Human Rights.
On 16th December 2009, the German Parliament established a commission of inquiry to assess, in particular, whether the airstrike had complied with the mandate given by Parliament to the German armed forces, with the operative planning, and with the applicable orders and rules of engagement. On 20th October 2011, the commission published its report, finding that, based on the information available to it, the airstrike could not be considered proportionate and should not have been ordered, but that Colonel K. had acted at the relevant time to the best of his knowledge and to protect “his” soldiers. His decision to order the airstrike had therefore been comprehensible.
Mr Hanan and another individual lodged a civil action for compensation against the Federal Republic of Germany in connection with the killing of their relatives by the airstrike of 4th September 2009. On 6th October 2016, after the Bonn Regional Court and then the Cologne Court of Appeal had rejected the plaintiffs’ claims, the Federal Court of Justice rejected their appeal on points of law as ill-founded. The Federal Constitutional Court declined to consider a constitutional complaint lodged by the applicant in respect of those civil proceedings.
The complaint and the decision of the European Court of Human Rights (ECtHR)
Relying on the procedural limb of Art 2 (right to life) of the European Convention of Human Rights (ECHR), the applicant alleged that the respondent State had not conducted an effective investigation into the airstrikes carried out on the 4th of September 2009 near Kunduz in which several people, including the applicant’s two sons, had been killed. Additionally, the applicant under Art 13 (right to an effective remedy) in conjunction with Art 2, complained that he had not had an effective domestic remedy by which to challenge the decision of the German Federal Prosecutor to discontinue the criminal investigation. Consequently, the application was lodged with the European Court of Human Rights on 13th January 2016. Later in August 2019, the Chamber relinquished jurisdiction in favour of the Grand Chamber. A hearing was later held on 26th February 2020.
On 16th February 2021, the Grand Chamber of the ECHR, in its 89-page judgment, concluded that the investigation into the deaths of the applicant’s two sons which was performed by the German authorities complied with the requirements of an effective investigation under Art 2 of the ECHR. As such, there has been no violation of the procedural limb of Art 2 of the Convention. Although, of the 17 judges sitting in the Grand Chamber, three of them, namely, Judges Grozev, Ranzoni, and Eicke, provided a joint dissenting opinion comprising 9 pages.
The Grand Chamber concluded that Mr Hanan’s application was admissible while further clarifying important principles relating to the question of jurisdiction. The Court considering several factors, termed as “special features”, justified the extraterritorial application of the ECHR in the case.
The Court noted that under customary international humanitarian law, Germany was under an obligation to investigate the airstrikes as it was relevant in determining the criminal liabilities of members of the German armed forces for a potential war crime. Second, of all, the Afghan authorities were prevented, for legal reasons, from instituting a criminal investigation against the members of the German armed forces, according to s.1(3) of the ISAF Status of Forces Agreement. Thirdly, the German prosecution authorities were required under domestic law to commence a criminal investigation and could only have dispensed such an investigation if there had been an investigation before an international tribunal or by the Afghan authorities, both of which were not possible due to Germany’s retention of exclusive jurisdiction over its troops according to the ISAF Status of Forces Agreement. Finally, the offences punishable under German law are serious in nature, and the applicable law was adopted against the background of Germany’s ratification of the Rome Statute.
In consideration of these “special features”, a jurisdictional link for Art 1 of the ECHR was established corresponding to the procedural obligation to investigate under Art 2 of the ECHR. As such, the Grand Chamber of the ECHR held that the investigation carried out by the German authorities concerning the deaths caused by the airstrikes ordered by Colonel K were compliant with Art 2; hence, there was no violation of the ECHR.
A copy of the judgment can be found here.
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