Germany before the European Court of Human Rights: Finally Accountability for the Airstrike at Kunduz (and Beyond)?

[Dr. Leonie Steinl, LL.M. is a post-doctoral researcher at Hamburg University, where she works in a DFG-project on “Strategic Litigation Networks and Accountability for Gross Violations of Human Rights”. Dr. Wenke Brückner currently works as a lawyer in Berlin, specializing in German and international criminal law. Both authors have previously worked on different aspects of the case of Hanan v. Germany for the European Centre for Constitutional and Human Rights.]

Wednesday was a big day for the European Convention on Human Rights. More than a decade after the airstrike at Kunduz, the Grand Chamber of the European Court of Human Rights held a hearing in the case of Hanan v. Germany. The case is important not only for Abdul Hanan, who is seeking accountability for the killing of his two sons, and for the German government as the respondent State. The outcome could also be of great significance for all Member States of the European Convention on Human Rights deploying their armed forces abroad. The first big question – and the reason why the governments of the United Kingdom, France, Sweden, Denmark, and Norway were given leave to intervene in the procedure before the Court – is: Does the European Convention on Human Rights apply on members of the armed forces while deployed abroad by member states? And if the Court deems the case admissible in this regard, the second – equally intriguing – question will be whether Germany actually fulfilled its obligation to effectively investigate the airstrike and hence fulfilled its obligations under the procedural aspect of the right to life according to Article 2 ECHR.

The applicant in the case is Abdul Hanan, an Afghan national who lost two sons in an airstrike ordered by German Colonel Klein. Mr. Hanan is being supported by the European Centre for Constitutional and Human Rights. The lethal airstrike occurred on 4 September 2009: Insurgents had hijacked two fuel tanker trucks which became immobilized on a sandbank on the Kunduz river located approximately seven kilometers from PRT Kunduz’s base.

In December 2001, the German Parliament had authorized the deployment of German armed forces in Afghanistan as part of a United Nations International Security Assistance Force (ISAF). German troops were deployed as part of ISAF’s Regional Command North. They were primarily in charge of the Provincial Reconstruction Team (PRT) Kunduz, having disciplinary and administrative command and control. At the time of the airstrike, PRT Kunduz was commanded by German Colonel Klein.

Colonel Klein ordered two US Air Force planes to bomb the immobilized tankers at 1:49 AM. The strike killed the applicant’s two sons, Abdul Bayan and Nesarullah, who were at that time approximately 12 and 8 years old. To date, the total number of victims remains unclear. Various reports indicate that between 14 and 142 persons were killed, most of which were civilians.

After the preliminary investigations in the days after the airstrike, the German Federal Public Prosecutor General opened a criminal investigation against Colonel K. and Staff Sergeant W. in March 2010, only six months after the airstrike. This investigation was discontinued in April 2010 due to an alleged lack of sufficient factual indications regarding a prosecutable criminal offence. The Federal Public Prosecutor General held that Colonel Klein did not know of any civilian presence at the scene and therefore had not acted with the intent to kill or harm civilians or to damage civilian objects to a degree which was disproportionate to the military benefit of the airstrike. As a result, he could not be held liable for offences pursuant to the German Code of Crimes against International Law. In addition, the Federal Prosecutor General found that all criminal offences pursuant to the German Criminal Code, such as murder, were justified due to the lawfulness of the attack under international law. A redacted version of decision to discontinue the investigation was served on the applicant’s representative in October 2010.

Mr. Hanan subsequently initiated proceedings to compel public charges but his motion was deemed inadmissible by the Düsseldorf Court of Appeal in February 2011. He then filed a constitutional complaint challenging the effectiveness of the investigation before the German Federal Constitutional Court. The Court refused to admit his complaint for adjudication in May 2015. It found that the Federal Prosecutor General had conducted effective investigations and that additional investigatory measures, such as hearing witnesses who were present during the airstrike, were unnecessary because the decision to discontinue the investigation was based on the accused’s lack of knowledge concerning the presence of civilians.

On 13 January 2016, Mr. Hanan lodged an application with the European Court of Human Rights referring to violations of the right to life enshrined in Article 2 and the right to an effective remedy guaranteed in Article 13 of the European Convention on Human Rights. Mr. Hanan submits that the investigation into the airstrike was not effective, constituting a violation of the procedural limb of Article 2 ECHR. He further alleges that he had no effective domestic remedy to challenge the decision to discontinue the investigation, constituting a violation of Article 13 ECHR.

As mentioned earlier, the Court will first have to deal with the applicability of the Convention in situations of military deployments by member states abroad. The governments of the United Kingdom, France, Sweden, Denmark, and Norway – who were given leave to intervene in the procedure before the Court – all argue against the applicability of the Convention in such cases as this would make foreign military missions more difficult. It is to be hoped that the Court will shed some light on the issue of applicability, so that it will once and for all be clear that “States cannot do abroad what they cannot do at home”.

The actual allegations against Germany concern the investigation of the airstrike – not the legality of the airstrike itself, at least not in a direct sense. In cases of a lethal use of force, the Convention requires an effective investigation and hence the Court will have to assess whether Germany did indeed investigate effectively. The following excerpt from the Court’s judgment in the case of Al-Skeini and Others v. the United Kingdom, also referred to in the Court’s Questions to the Parties in the case at hand, provides an insightful analysis of this requirement:

[T]he investigation must be effective in the sense that it is capable of leading to a determination of whether the force used was or was not justified in the circumstances and to the identification and punishment of those responsible. This is not an obligation of result, but of means. The authorities must take the reasonable steps available to them to secure the evidence concerning the incident, including inter alia eye-witness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person or persons responsible will risk falling foul of this standard.

[…] For an investigation into alleged unlawful killing by State agents to be effective, it is necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence. A requirement of promptness and reasonable expedition is implicit in this context. While there may be obstacles or difficulties which prevent progress in an investigation in a particular situation, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory. The degree of public scrutiny required may well vary from case to case. In all cases, however, the victim’s next-of-kin must be involved in the procedure to the extent necessary to safeguard his or her legitimate interests.

[citations omitted by authors]

Hence, in previous jurisprudence when assessing the requirement of an effective investigation, the Court considered inter alia whether reasonable and available investigatory measures were undertaken with the aim of establishing the justification of a lethal use of force, whether the persons conducting the investigation were independent, whether the investigations were conducted with the necessary expedition and whether the victim’s next of kin were sufficiently involved in the proceedings.

Mr. Hanan argues that Germany failed to meet this standard. One particularly striking indication for the lack of an effective investigation is that the number and status of persons killed as a result of the airstrike is still unclear to date. The fact that “[d]ifferent reports indicate that between 14 and 142 people died, of which 14 to 113 were civilians” demonstrates an astounding lack of knowledge concerning basic facts of the event in question. Until now, it has not been determined, whether the airstrike was an offensive or a defensive act. By not considering the number and status of persons killed as relevant for assessing the existence of sufficient reasons to advance public charges the Federal the Prosecutor General did not take into account that the number of civilian victims could have affected the assessment of the proportionality of the attack and consequently possibly also the exculpatory defense argued in favor of Colonel Klein.

Another problematic issue concerns the requirement of independence: It is clear that Colonel Klein was involved in the on-site investigations. Furthermore, according to German law, the Federal Prosecutor General is bound by directives of the Ministry of Justice according to Sections 146 and 147 of the Courts Constitution Act (Gerichtsverfassungsgesetz). Considering the judgment of the European Court of Justice, declaring the German public prosecutors’ offices lacking the necessary independence to issue a European arrest warrant, even the possibility of influencing the decision of the Federal Prosecutor General might constitute a problem. Although there is no hierarchical structure and dependence between the Federal Prosecutor General and Colonel Klein, such a structure does exist between the Federal Prosecutor General and the Ministry of Justice. Political interests of the government are bound to find their way into the proceedings in situations where Germany has been acting in a military conflict abroad. And indeed, as can be seen in the instructive report of the German Committee of Inquiry, a myriad of parties, among them the Ministry of Defense and the Federal Armed Forces, were interested in the investigations and attempted to influence its outcome.

Wednesday’s hearing started with the oral submissions by the parties, with Almut Wittling-Vogel and Prof. Heike Krieger appearing on behalf of the German government and Wolfgang Kaleck and Prof. Dapo Akande appearing on behalf of the applicant. This was followed by submissions from France, the United Kingdom and Rights Watch (UK), all appearing as third party interveners. The Judges asked several specific questions relating inter alia to the issues of jurisdiction and attributability and the relationship between human rights law and international humanitarian law. In responding to the questions, the applicant’s representatives also named various concrete investigatory steps that could have been taken by Germany in order to fulfill their duty under the Convention.

The Court now has the important opportunity to clarify whether the investigations undertaken by Germany did meet the requirements of the European Convention on Human Rights. It can only be hoped that it will provide at least some answers regarding the human rights obligations of Member States involved in military conflicts abroad, including their obligation to investigate any lethal use of force in a way that is indeed bound to investigate the events unbiased by States’ own interests to protect their soldiers and their political aspirations.