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 were killed or injured. The subsequent reaction of the German government, army and prosecution authorities was inadequate and failed to conform to international human rights standards. The armed forces and the German government initially attempted to cover up the fact that most of the victims of the air strike were civilians. In addition, German authorities failed to initiate timely independent investigations to determine who was among the victims of the attack.
Those responsible for the attack have still not been held criminally accountable – the German Federal Prosecution discontinued its investigations in April 2010 and the State Prosecutor in Dresden and the Higher Regional Court of Düsseldorf have refused to carry out further investigations. The victims' families were offered 5,000 US dollars each, far too little for those families who lost their primary breadwinners. To date no official apology has been offered to those affected.
The efforts by ECCHR and others to hold those responsible criminally liable and to secure reparations for the victims and their relatives are grounded in the belief not only that the actions of German soldiers abroad must conform to legal requirements, but also that court proceedings are necessary in these cases in order to assess such military action in a transparent manner and in accordance with the rule of law. No such assessment has so far taken place in the context of the Kunduz airstrike.
A constitutional complaint against the discontinuation of the criminal investigation is pending. A compensation claim is currently under review by the Regional Court of Bonn.
ECCHR is assisting the lawyers who since April 2010 have been representing a father who lost his two sons, aged eight and twelve, in the attack. As an initial step, a comprehensive legal analysis was undertaken examining the criminal liability of German actors for the airstrike. After the Public Prosecution’s decision to discontinue its investigation, a claim was lodged with the Higher Regional Court of Düsseldorf to compel the authorities to bring charges in the case. In this submission, criticisms were leveled at the inadequate investigations undertaken by the Federal Prosecution. The criminal evaluation of the incident submits principally that the accused failed to take adequate measures to gather information before giving the order to attack. This argument was supported in an expert legal opinion by renowned international law professors Marco Sassòli and Anne-Laurence Brugère (University of Geneva). The opinion describes the precautionary standards that apply to military attacks under international humanitarian law, and sets out the relationship between such measures and the principle of proportionality. Another expert legal opinion by Professor Florian Jeßberger (University of Hamburg) supports the request for further investigations, arguing that the German Federal Prosecutor was not competent to suspend the entire investigation.
Following the Higher Regional Court of Düsseldorf’s refusal to further investigate the matter, a constitutional complaint was submitted to the Federal Constitutional Court in Karlsruhe, mainly concerning the right of access to the courts to obtain judicial review of the Federal Prosecutor’s decision to discontinue its investigation. Concerns were also raised in the complaint about how the German prosecution authorities dealt with victims of the bombing and regarding violations of the state’s obligation under the European Convention on Human Rights to carry out effective investigations in cases of deaths resulting from the actions of state agents. The constitutional complaint is currently pending.
Debate / Publications
ECCHR staff have commented on the proceedings in a German law journal article and in interviews: