The Strasbourg-based court rejects an Afghan citizen’s complaint about Germany’s handling of the investigation into the 2009 incident.
The European Court of Human Rights (ECHR) ruled that Germany had carried out a thorough investigation into a NATO bombing in Afghanistan in 2009 that was ordered by a German commander and killed dozens of people.
The Strasbourg court ruling on Tuesday dismissed a complaint by Afghan citizen Abdul Hanan, who lost two sons in the attack, that Germany had failed to fulfill its obligation to effectively investigate the incident.
The airstrike was ordered by the commander of NATO troops in Kunduz, Georg Klein, who called in an American fighter jet to hit two fuel trucks near the town of Kunduz which NATO said had been hijacked by Taliban fighters.
Contrary to intelligence on which Klein based his decision, most of those surrounding the trucks were local civilians asked by the Taliban to siphon fuel from the vehicles after they got stuck in a riverbed.
The Afghan government said at the time that 99 people, including 30 civilians, were killed. Independent rights groups have estimated that between 60 and 70 civilians have been killed.
Decision “ important at international level ”
The Federal Attorney General of Germany had concluded that Klein had not incurred criminal liability, mainly because he was convinced when he ordered the airstrike that no civilians were present.
In order for him to be responsible under international law, he would have had to act with intent to cause excessive civilian casualties.
The ECHR examined the effectiveness of the investigation carried out by Germany, including whether it established a justification for the murderous use of force. He did not consider the legality of the air attack.
He concluded that German federal prosecutors could “rely on a considerable amount of documentation regarding the circumstances and impact of the airstrike”.
He also noted that the courts, including Germany’s highest, the Federal Constitutional Court, have dismissed Hanan’s cases. And he 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 the judges made it clear that governments at least had a duty to investigate such cases.
“The bombing and the dozens of civilian deaths did not lead to blame, there is no resumption of the criminal case,” he told reporters after the court announced its decision.
“On the other hand, it will be very important at international level, also in the future, that the European Convention on Human Rights apply,” said Kaleck. “That is, those who conduct such military operations must legally answer for them afterwards, hopefully to a greater extent than in the Kunduz affair.”
Afghanistan peace agreement
A separate legal effort to force Germany to pay more in compensation than the $ 5,000 it has so far given to families for each victim was rejected last year by the Federal Constitutional Court. This civil case may still be the subject of an appeal in Strasbourg.
Kaleck said he hoped the German government, which initially labeled those affected – including children – Taliban and denied them access to court records for months, would reach out to the victims with an official apology. , now that the threat of criminal liability is on the table.
Klein has since been promoted to the rank of Brigadier General.
Germany, meanwhile, continues to have the second largest contingent of the 9,600 NATO troops in Afghanistan, behind the United States.
A 2020 peace deal between the Taliban and the United States calls for the withdrawal of foreign troops by May 1, but the administration of new President Joe Biden is reviewing the deal.
Germany is preparing to extend the mandate of its military mission in Afghanistan from March 31 to the end of this year, the strength remaining at 1,300 troops, according to a draft document consulted by the Reuters news agency.