Entschädigung für Kollateralschäden? Rechtsfragen anlässlich des Luftangriffs bei Kunduz im September 2009

The article focuses on the civil responsibility of Germany for the death of Afghan civilians caused by an airstrike in the region of Kunduz. The attack was ordered by an officer of the German Army, Colonel Klein, and carried out by U. S. Air Force pilots against two gas tanker trucks hijacked by the Taliban. While the General Public Prosecutor investigated the case and in April of 2010 decided to terminate the investigations against Colonel Klein, civil lawsuits filed by the victims and their relatives against the Federal Republic of Germany are still pending. The investigation committee of the German Parliament published its final report about the airstrike in northern Afghanistan in the end of 2011 and concluded that probably more than 80 innocent civilians were killed by the bombs. Furthermore the investigation committee discovered new facts, not mentioned in the final note of the General Public Prosecutor. These include new findings about the informant of the German Army who had declared that there had been only »Taliban« around the tanker trucks and no »civilians«. Actually the informant had not been on site and got his information only from unnamed »subcontacts«. He was not adequately interrogated, although his allegation had been the main reason for the assumption of Colonel Klein that the airstrike would eliminate only fighters of the insurgents. We argue that the airstrike violated International Humanitarian Law (IHL), the European Convention on Human Rights (ECHR) and fundamental rights of the German Constitution. The three norm complexes are simultaneously applicable during contingency operations of the German Army. First the airstrike caused a violation of IHL. There has been a foreseeable collateral damage excessive in relation to the concrete and direct military advantage anticipated to result from the attack (Art. 51 (5) (b) of the Protocol Additional to the Geneva Conventions of 12 August 1949 – AP/I). In addition the requirement to take feasible precautions in attack, including early warning (Art. 57 (2) (a) of AP/I), has not been respected. Moreover the German Army violated Rules of Engagement (RoE) applicable to the mission of the International Security Assistance Forces (ISAF) in Afghanistan. Although RoE are primarily internal norms, deviations could lead to a reversal of burden of proof in civil litigations. Therefore the violating state has to proof that the disregard of the RoE didn't cause a violation of the precautionary principle of IHL. Secondly the airstrike caused a violation of the right to life (Art. 2 (1) of ECHR). There has not been a situation which could justify the deprivation of civilian lives (Art. 2 (2) of ECHR), namely an actual armed attack against the German Army. Furthermore the standard of precautionary measures required by the jurisprudence of the European Court of Human Rights (ECtHR) which overlaps with IHL standard was not sufficiently fulfilled. Finally Germany has failed to act quickly to investigate the deadly attack. Third the killing of innocent civilians violated the right to life guaranteed in Art. 2 (2) of the German Constitution. Until now there is no legal base for deadly force used by the German Army in contingency operations required by the Constitution. Due to the Federal Constitutional Court the killing of innocent civilians causes a violation of human dignity without any possibility of justification because the victims are solely treated like objects, ignoring the subjectivity of any human being. Therefore it can be concluded that any military attack causing the loss of a civilian life constitutes a violation of fundamental rights of the German Constitution, independent of the proportionality of the collateral damage in regard of the expected military advantage.