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Strasbourg-based court rejects complaint by Afghan citizen over Germany’s handling of investigation into 2009 incident.
The European Court of Human Rights (ECHR) has ruled that Germany thoroughly investigated a 2009 NATO bombing in Afghanistan that was ordered by a German commander and killed dozens of people.
The decision by the Strasbourg-based court on Tuesday rejected a complaint by Afghan citizen Abdul Hanan, who lost two sons in the attack, that Germany did not fulfil its obligation to effectively investigate the incident.
The air attack was ordered by the commander of NATO troops in Kunduz, Georg Klein, who called in a United States fighter jet to strike two fuel trucks near the city of Kunduz which NATO believed had been hijacked by Taliban fighters.
Contrary to the intelligence Klein based his decision on, most of those surrounding the trucks were local civilians invited by the Taliban to siphon fuel from the vehicles after they had become stuck in a riverbed.
The Afghan government said at the time 99 people, including 30 civilians, were killed. Independent rights groups estimated between 60 and 70 civilians were killed.
Ruling ‘important internationally’
Germany’s federal prosecutor general had found that Klein did not incur criminal liability, mainly because he was convinced when he ordered the air attack that no civilians were present.
For him to be liable under international law, he would have had to be found to have acted with intent to cause excessive civilian casualties.
The ECHR considered the effectiveness of Germany’s investigation, including whether it established a justification for lethal use of force. It did not consider the legality of the air attack.
It found that German federal prosecutors were “able to rely on a considerable amount of material concerning the circumstances and the impact of the airstrike”.
It also noted that courts including Germany’s highest, the Federal Constitutional Court, rejected cases by Hanan. And it added that a parliamentary commission of inquiry “had ensured a high level of public scrutiny of the case”.
Wolfgang Kaleck, the head of the European Center for Constitutional and Human Rights who provided legal support to Hanan, said the verdict was a disappointment for the latter but noted that judges had made clear that governments have a duty to at least investigate such cases.
“The bombardment and the dozens of civilian deaths didn’t result in a rebuke, there’s no resumption of the criminal case,” he told reporters after the court announced its decision.
“On the other hand, it will be very important internationally, also in future, that the European Convention on Human Rights applies,” Kaleck said. “That’s to say, those who conduct such military operations have to legally answer for them afterward, hopefully to a greater extent than in the Kunduz case.”
Afghanistan peace agreement
A separate legal effort to force Germany to pay more compensation than the $5,000 it has so far given families for each victim was rejected last year by the Federal Constitutional Court. This civil case can still be appealed in Strasbourg.
Kaleck said he hoped the German government, which initially branded those affected – including children – as Taliban and denied them access to legal files for months, would reach out to the victims with a formal apology, now that the threat of criminal liability is off the table.
Klein has since been promoted to the rank of brigadier general.
Germany, meanwhile, continues to have the second-largest contingent of all 9,600 NATO troops in Afghanistan, behind the US.
A 2020 peace agreement between the Taliban and the US calls for foreign troops to withdraw by May 1, but new President Joe Biden’s administration is reviewing the deal.
Germany is preparing to extend the mandate for its military mission in Afghanistan from March 31 until the end of this year, with troop levels remaining at up to 1,300, according to a draft document seen by Reuters news agency.
