Afghanistan - Kunduz - German armed forces

Kunduz airstrike – German military goes unpunished

Afghanistan - Kunduz - German armed forces

Kunduz airstrike – German military goes unpunished

On 4 September 2009, two US fighter jets, acting on the orders of German Army Colonel Georg Klein, bombed a large group of people and two tanker trucks on a sandbar in the Kunduz River in Afghanistan. More than 100 people – mainly civilians – were killed or injured. During the following investigations, the German government and military repeatedly put their own interests ahead of prosecuting those responsible.

In February 2021, the European Court of Human Rights in Strasbourg nevertheless decided that Germany had done enough to investigate the airstrike, despite several oversights. Nevertheless, the ECtHR reaffirmed that it has jurisdiction to examine possible war crimes by the German military abroad. The ruling therefore has significance for past and future military operations, even beyond Germany.

Case

ECCHR assisted the case of Abdul Hanan, a father who lost his two sons, aged eight and twelve, in the attack. In January 2016, Hanan filed an individual complaint against the German government before the ECtHR. It argumed that Colonel Klein had failed to sufficiently verify whether and how many civilians were in the vicinity of the tankers prior to the attack. The German government and military moreover tried to protect Klein and the other responsible parties by covering up the consequences of the airstrike.

Apart from that, several parts of Germany’s investiation into the strike were classified and never made public. Examinations at the site of the strike were never undertaken because NATO was responsible there. Although NATO investigated the case, it did not do so with a focus on securing evidence. NATO and Germany’s “organized irresponsibility” thereby prevented a thorough investigation. Taking the case to Strasbourg became necessary because the German judiciary’s investigation was insufficient and led to the case’s premature closure in April 2010.

Context

Those responsible for the Kunduz bombing have not yet been held criminally accountable. Those affected have not received an official apology. They still suffer from the consequences of the aristrike, which killed men, women and children from mainly two villages.

German soldiers’ actions abroad must conform to legal requirements, and court proceedings to assess military action must be transparent and follow the rule of law. So far, the treatment of the Kunduz airstrike has failed to follow these principles.

Background

Q&A on the legal basis of the Kunduz case

In the early hours of 4 September 2009, US fighter jets dropped two 500-pound bombs near the Kunduz River in northeastern Afghanistan. The bombs targeted a crowd of people and two tankers that had been hijacked by the Taliban. Reportedly more than 100 civilians, including children, were killed or injured.

Colonel Georg Klein ordered the bombing. He commanded the German Armed Forces’ field camp in Kunduz only a few kilometers away. Klein testified that he feared the Taliban might use the vehicles as moving bombs against the German camp, even though the trucks were stuck on a sandbank in the river.

Several investigative teams tried to determine how many people died in the bombing, and how many were armed fighters. Children who died or were seriously injured in the attack were certainly not.

A few weeks after the bombing, the German Armed Forces inspector general said that between 17 and 142 people died. The German military now estimates that 91 people died and 11 were injured. On the tenth anniversary of the Kunduz airstrike, in response to the German Left Party’s parliamentary request, the German government said that it had not verified the exact number of victims.

Statements by Abdul Hanan – who lost two sons in the airstrike and has been in regular contact with ECCHR – suggest that many people are still traumatized and dependent on support. Survivors of the attack and the bereaved only received a payment of 5000 US dollars for each death from Germany.

Like Hanan, many of those affected continue to demand a comprehensive legal review of the case as well as an official apology from Germany, which has never held talks with the villagers, nor provided them any long-term support. Colonel Klein’s promotion to brigadier general further increased the people of Northern Afghanistan’s disappointment about the German authorities’ behavior.

Cases of exceptional importance can be heard directly by the ECtHR Grand Chamber. The court found that the Kunduz case fell into this category.

Abdul Hanan filed an individual complaint against Germany before the ECtHR in January 2016. Since 2010, Hanan tried in vain to make himself heard before the German Federal Public Prosecutor’s Office, the Düsseldorf Higher Regional Court and the German Federal Constitutional Court.

Hanan accused Germany of never having the aim of establishing the truth, and failing to check whether the use of lethal force was absolutely necessary and proportionate in terms of human rights standards. Germany’s entire approach to the airstrike’s legal review was guided by a desire to relieve the German soldiers involved of their responsibility.

The allegations in the ECtHR complaint include: the lack of independence of the German military police and federal public prosecutor, numerous delays in the course of the proceedings, political influence on the investigations, secrecy, lack of questioning the information provided by the soldiers involved, and insufficient participation of those affected.

The ECtHR ruled that it had jurisdiction to review Germany’s investigation even though it concerned a military operation outside Europe. Although the court found errors and inadequacies in the investigation, it considered Germany’s legal review of the airstrike sufficient. The court thus dismissed the complaint as admissible but unfounded. Claims for compensation and the legality of the airstrike itself were not dealt with.

ECCHR welcomes that the court confirmed its jurisdiction over this case. This is an important decision for future proceedings, not only for Germany, but for all Council of Europe member states. However, for the Kunduz case, the court’s decision is unfortunate and disappointing. Despite multiple shortcomings, delays and secrecy in Germany’s review, the ECtHR found no violation of the European Convention on Human Rights. It was precisely the initial errors in the review as well as the obfuscation of responsibilities between NATO and Germany that prevented those affected from being able to challenge the airstrike in court, either under criminal or civil law.

ECCHR represented the complainant in all proceedings, including in the criminal proceedings against Colonel Klein and later, in complaints about the investigation’s early termination. ECCHR also coordinated the case before the ECtHR.

From the very beginning, the German Armed Forces tried to appease the German public. It never seemed to be a question of providing comprehensive, transparent and appropriate information on the airstrike’s circumstances and the extent of its damage. There were no direct disciplinary or criminal investigations.

Officers in the Kunduz field camp were so hesitant to investigate that it was no longer possible to secure the scene of the crime in its direct aftermath. The circumstances that led to the attack and the situation on the sandbank at the time were never sufficiently investigated or clarified.

Colonel Klein has not been prosecuted under military law. On the contrary: he was promoted to brigadier general in 2013, and has headed the training department in the Command and Control Base in Bonn since March 2019.

The airstrike on the Kunduz River triggered a political chain reaction in Germany, which ultimately cost the then Federal Minister of Defense Franz Josef Jung (Christian Social Union) his job. Jung initially claimed that dozens of Taliban were killed, and considered the attack a success.

Jung’s successor Karl-Theodor zu Guttenberg (CSU) described the attack as “militarily appropriate” in November 2009. He later claimed that important information had not been communicated to him. Finally, in December 2009, Guttenberg told the German parliament, “Although Colonel Klein undoubtedly acted to the best of his knowledge and conscience and to protect his soldiers, it was militarily inappropriate from today’s objective point of view, in light of all the documents, including those withheld from me at the time.”

Chancellor Angela Merkel also came under pressure: in February 2011, she had to testify before the German Parliament’s investigative committee. Merkel distanced herself from the statements of her former Defense Minister Jung, and emphasized that she repeatedly urged and asked him to account for the possibility of civilian victims in his public statements.

Angela Merkel’s administration has never commemorated the victims of the Kunduz bombing, and apparently has no plans to. This can be concluded from her administration’s answers to a number of questions from the German Left Party’s parliamentary group.

The German government does not show any understanding of its responsibility in the Kunduz case: the airstrike was “permissible under international law and thus justified under criminal law.” Furthermore, previous payments to survivors were – according to the government – expressly not linked to a recognition of legal obligation.

Neither the German military nor the government have publicly expressed their views on possible military or political lessons learned from the deadliest German military mission since World War II.

According to the German Criminal Code, murder or negligent homicide (according to Paragraphs 211 and 222, respectively) are particularly relevant. Even if Klein assumed that he would only attack insurgents, which theoretically, might not violate international law, he was at least grossly negligent. He should have sufficiently weighed, classified and carefully checked the paltry information he had access to – aerial photographs and information from a single informant near the sandbank. In view of the overall circumstances, the order to drop the bombs should ultimately not have been issued.

According to all publicly available information, Colonel Klein a) used only one source of information, b) did not sufficiently check whether there was a risk of civilian casualties, and c) did not warn civilians on the sandbank sufficiently or in time.

The German judiciary has not sufficiently dealt with the Kunduz airstrike case.

The German Ministry of Defense actively tried to influence possible criminal proceedings by initially withholding important documents and reports. There were several talks between the ministry and the originally responsible public prosecutor in Dresden in which the latter indicated he wished to raise important legal issues that had not yet been decided by the highest court. In the end, the Dresden Public Prosecutor’s Office took advantage of a motion by the Ministry of Defense and dropped the case.

It was not until 15 March 2010, six months after the airstrike, that the German Federal Prosecutor’s Office in Karlsruhe opened an investigation. Only four weeks later, on 19 April 2010, the office issued a press release announcing that the proceedings had been closed on the grounds that there was no apparent violation of international or German criminal law.

The Federal Public Prosecutor’s Office essentially confined its factual inquiry to the question of Colonel Klein’s subjective perceptions and assessments, without questioning their basis. Only four witnesses – no victims or eyewitnesses – were interviewed. The circumstances surrounding the attack were not taken into account, nor was the question of whether Colonel Klein took sufficient precautions during the attack adequately addressed.

The Federal Public Prosecutor’s Office did not conduct its own investigations on the ground, and instead referred mostly to military information and lists of victims compiled by an Afghan investigative commission, which, in the view of those affected and their counsel, were insufficient and riddled with errors.

In June 2015, the Federal Constitutional Court confirmed that Colonel Klein credibly stated that he considered the Kunduz base to be in danger, and had no information about civilians on the sandbank.

None of the injured parties or their family members were granted a hearing in German court.

Their lawyers were denied access to files on various grounds, and ultimately, were only granted very limited access. They received a public version of the decision to end the proceedings six months after the decision was made. They were provided this in order to examine the decision and, if necessary, file an appeal. The complaint enforcement procedure and constitutional complaint were rejected.

In October 2016, the Federal Court of Justice in Karlsruhe ruled that Germany was not liable for the deaths and injuries of victims of the Kunduz airstrike, and did not have to pay damages. In its judgment, the court confirmed the lower courts’ decisions. Two Afghan plaintiffs – Hanan and Qureisha Rauf, a mother of six who lost her husband in the airstrike – then filed a complaint with the Federal Constitutional Court, which rejected it.

The German government has neither compensated nor apologized to airstrike survivors or the bereaved. However, about a year after the bombing, the German Ministry of Defense paid the relatives 5000 US dollars per victim. Hanan also received this money but only for one of his two dead sons.

The German Defense Ministry and military did not want the payments to be understood as compensation, and thus as an admission of guilt. The German Armed Forces’ website stated that the payments constituted voluntary humanitarian aid and not “compensation in the legal sense.”

Related Topics

documents

glossary

The Office of the German Federal Public Prosecutor is Germany’s highest prosecutory authority.
The European Convention on Human Rights sets out agreed standards of human rights and fundemental freedoms in Europe.
The European Court of Human Rights was established in 1959 to adjudicate cases of alleged violations of the European Court of Human Rights.