Fundamental Breaches of Procedure in Colonel Klein Case
04 May 2010 On 19 April 2010 the Office of the Federal
Prosecutor announced in the Federal Court that it would dismiss
investigations into the case of German Armed Forces Colonel, Colonel Klein, and
Master Sergeant Wilhelm. Both were accused of war crimes and murder following
their decision to order an airstrike on two road tankers close to Kundus. In
the course of the attack, up to 142 people were killed, among them civilians.
ECCHR General Secretary Wolfgang Kaleck is representing the families of the
Afghan victims, together with Bremen-based attorneys Bernhard Docke und Karim
Popal.
The decision taken by the Office of the Federal Prosecutor to dismiss the criminal proceedings appears to be politically motivated. Criminal investigations and possible charges against soldiers from the German Federal Army are not desirable given the current debates about strategies in Afghanistan and the option of troop withdrawal.
Furthermore, this decision creates a clear precedent in the way in which the criminally relevant conduct of German soldiers in missions abroad is dealt with. Such decisions send out a message to soldiers and - by no means less important- to the western allies that Germany does not impose serious legal penalties for the murder of civilians in armed conflict.
The airstrike on Kundus marks the first incident since the Second World War in which Germany has been responsible for an attack with severe civilian casualties. Given this, the recent decision to end proceedings as quickly as possible and to prevent public discussion seems is yet more incomprehensible.
Despite numerous requests, the attorneys for those affected were not able to obtain access records. Thus, what would otherwise have been a routine opportunity to make representations was refused them. An appeal against the dismissal is also being impeded by the failure to date to send the attorneys the Order to Stop Proceedings. The reason for the dismissal, just like the dismissal decision on the basis of presented evidence, remains unclear. For the large part, both the results of the investigation and the evidence have been classified as secret, as have parts of the dismissal decree itself.
Such "secret proceedings" sidestep both democratic and juristic controls. The rights of those affected are being severely violated. Should this way of proceeding provide a precedent for future cases, it would signal a carte blanche for war crimes committed by German soldiers in overseas operations. When one remembers that Germany is a key player in the international prosecutions of the most serious crimes, the behavior of the Office of the Federal Prosecutor with regards to such procedure is more than simply inappropriate. Serious consideration should also be given to the way in which the facts covered by this investigation were then interpreted.
From the information available, Colonel Klein appears not to have committed any war crimes. Nonetheless offences according to regular criminal law, such as willful or negligent homicide, appear to be fulfilled. Colonel Klein disregarded numerous regulations, both from the Geneva agreement and internal NATO deployment regulations, to proceed with caution when planning attacks. He trusted information from one single Afghan informant, with whom he communicated via three different intermediaries, and who himself was not at the location of the incident. Although video images of the American airplanes showed numerous people around the road tankers over a long period of time, Colonel Klein did not ensure that no children or civilians were present at the time of the attack. Following attacks on the Federal army in this region, and the given the massive influence of local powers, the air attack appears to have been an act of pure retaliation against the people of Caldara. In order to justify their jurisdictional competence, the necessary clarification of targets was disregarded and American pilots were deliberately misinformed.
The ECCHR is analyzing the relevant law in detail and will present a legal submission in due course via the families' attorneys. A comprehensive explanation must be given for the misconduct of individual federal soldiers in order to prevent further violations occurring at the expense of the civilian population. Regardless of criminal proceedings, the families of the victims must be given adequate compensation.
The decision taken by the Office of the Federal Prosecutor to dismiss the criminal proceedings appears to be politically motivated. Criminal investigations and possible charges against soldiers from the German Federal Army are not desirable given the current debates about strategies in Afghanistan and the option of troop withdrawal.
Furthermore, this decision creates a clear precedent in the way in which the criminally relevant conduct of German soldiers in missions abroad is dealt with. Such decisions send out a message to soldiers and - by no means less important- to the western allies that Germany does not impose serious legal penalties for the murder of civilians in armed conflict.
The airstrike on Kundus marks the first incident since the Second World War in which Germany has been responsible for an attack with severe civilian casualties. Given this, the recent decision to end proceedings as quickly as possible and to prevent public discussion seems is yet more incomprehensible.
Despite numerous requests, the attorneys for those affected were not able to obtain access records. Thus, what would otherwise have been a routine opportunity to make representations was refused them. An appeal against the dismissal is also being impeded by the failure to date to send the attorneys the Order to Stop Proceedings. The reason for the dismissal, just like the dismissal decision on the basis of presented evidence, remains unclear. For the large part, both the results of the investigation and the evidence have been classified as secret, as have parts of the dismissal decree itself.
Such "secret proceedings" sidestep both democratic and juristic controls. The rights of those affected are being severely violated. Should this way of proceeding provide a precedent for future cases, it would signal a carte blanche for war crimes committed by German soldiers in overseas operations. When one remembers that Germany is a key player in the international prosecutions of the most serious crimes, the behavior of the Office of the Federal Prosecutor with regards to such procedure is more than simply inappropriate. Serious consideration should also be given to the way in which the facts covered by this investigation were then interpreted.
From the information available, Colonel Klein appears not to have committed any war crimes. Nonetheless offences according to regular criminal law, such as willful or negligent homicide, appear to be fulfilled. Colonel Klein disregarded numerous regulations, both from the Geneva agreement and internal NATO deployment regulations, to proceed with caution when planning attacks. He trusted information from one single Afghan informant, with whom he communicated via three different intermediaries, and who himself was not at the location of the incident. Although video images of the American airplanes showed numerous people around the road tankers over a long period of time, Colonel Klein did not ensure that no children or civilians were present at the time of the attack. Following attacks on the Federal army in this region, and the given the massive influence of local powers, the air attack appears to have been an act of pure retaliation against the people of Caldara. In order to justify their jurisdictional competence, the necessary clarification of targets was disregarded and American pilots were deliberately misinformed.
The ECCHR is analyzing the relevant law in detail and will present a legal submission in due course via the families' attorneys. A comprehensive explanation must be given for the misconduct of individual federal soldiers in order to prevent further violations occurring at the expense of the civilian population. Regardless of criminal proceedings, the families of the victims must be given adequate compensation.