Hanan v. Germany

Germany's obligation to conduct an adequate investigation into 2009 killings of Afghan civilians

In 2009, a German commander serving in Afghanistan gave the order to bomb fuel tankers in the Kunduz region. The airstrike destroyed the tankers and killed several people, including several dozen civilians. Among the dead were two boys, Abdul Bayan and Nesarullah, aged 12 and 8. The European Court of Human Rights found that Germany was obliged under international humanitarian law to investigate the airstrike for a potential war crime.

Facts

Following the attacks of September 11, 2001, the U.S. launched military operations in Afghanistan on October 7 under the name Operation Enduring Freedom. In November 2001, the German parliament authorized the deployment of troops as part of that operation.

In December, Afghan leaders requested the assistance of the international community in maintaining security by providing for the establishment of an International Security Assistance Force (ISAF). The UN Security Council authorized the establishment of ISAF, and the German Parliament authorized the deployment of German armed forces as part of ISAF.

By mid-2009, the security situation in the Kunduz region had deteriorated sharply. On September 3, insurgents hijacked two fuel tankers that had become immobilized on a sand bank of the Kunduz River. They enlisted civilians from the nearby villages to help them move the tankers. A German commander of the nearby military base gave the order to bomb the still-immobilized fuel tankers. The airstrike destroyed both tankers and killed several people, including over 90 civilians, according to a German army investigation. Among the dead were two boys, Abdul Bayan and Nesarullah, aged 12 and 8.

A German investigation team was deployed to look into what occurred. By March 12, 2010, the federal prosecutor general opened a criminal investigation against the officials involved in the airstrike. However, by April, the criminal investigation was discontinued on the basis that there was a lack of sufficient grounds for liability, including that the officials had not had the necessary intent to kill or harm civilians, and the fact that the lawfulness of the airstrike under international law served as an exculpatory defense.

On October 20, 2011, a commission of inquiry established by the German parliament in 2009 published its report, finding that the airstrike could not be considered proportionate and should not have been ordered. However, the report also concluded that the acting official had acted at the relevant time to the best of his knowledge and to protect German forces.

Legal Background

On November 15, 2010, Abdul Hanan, the father of the two boys killed by the German airstrike, filed a motion with the Düsseldorf Court of Appeal seeking that either public charges be brought against the officials involved or that the public prosecutor continue investigating the matter, arguing that additional investigative measures were required. The federal prosecutor general submitted a response noting that the motion should be dismissed, maintaining that all the necessary investigative measures had been carried out. On February 16, 2011, the Court dismissed the Hanan’s motion.

On March 28, Hanan filed a complaint of a breach of the right to be heard. The Court of Appeal dismissed the complaint as ill-founded. Although he then lodged two complaints with the Federal Constitutional Court alleging that the criminal investigation had been ineffective, the Court refused to admit either complaint.

On October 6, 2016, the Federal Court of Justice rejected a 2009 civil action Hanan filed against Germany for compensation.

Proceedings

On January 13, 2016, Hanan lodged a complaint with the European Court of Human Rights. Relying on the procedural limb of Article 2 of the European Convention on Human Rights, guaranteeing the right to life, the Hanan alleged that Germany had not conducted an effective investigation into the airstrike. On August 27, 2019, the Chamber relinquished jurisdiction in favor of the Grand Chamber.

Open Society Justice Initiative Involvement

The Justice Initiative submitted a third party intervention to the Grand Chamber, analyzing the proper approach to jurisdiction when an incident is extraterritorial, including toward the investigation. The intervention also examines the legal standards under international human rights law and international humanitarian law on the obligation to investigate civilian harm in conflict.

Arguments

The case was argued exclusively under the procedural limb of Article 2 of the European Convention on Human Rights regarding the criminal investigation into the airstrike. The Justice Initiative explained to the court that there was a trend in international law towards recognizing states’ procedural obligations where they had direct control or authority over a victim’s rights, irrespective of where the incident took place and regardless of whether the state also had jurisdiction over the victim’s substantive right under Article 2.

The Justice Initiative explained that alternatively, if the Court found that jurisdiction over a victim’s substantive right under Article 2 were required to establish whether a procedural obligation arose, there is also growing recognition that international human rights law obligations arose where a state exercised power, control, or authority over a person’s rights. Moreover, if international humanitarian law applied to the conflict and to the extraterritorial incident in question, then the state was bound by international humanitarian law obligations to conduct an investigation, and no further question of jurisdiction would arise.

Findings

In a decision issued on February 21, 2021, the court found that Germany was obliged under international humanitarian law to investigate the airstrike, as it concerned the individual criminal responsibility of members of the German armed forces, for a potential war crime. Moreover, it emphasized that the Afghan authorities had been prevented from instituting a criminal investigation because the ISAF Status of Forces Agreement provided that troop-contributing states retain exclusive jurisdiction in respect of any offences which their troops might commit in Afghanistan. This constituted a rule of immunity, insofar as it shielded the ISAF personnel of troop-contributing states from prosecution by the Afghan authorities. However, it was also a rule regulating jurisdiction, which clarified who had jurisdiction over ISAF personnel in criminal matters and provided that only the troop-contributing states were entitled to institute a criminal investigation or proceedings against their personnel, even in cases of alleged war crimes.

The court also found that the German prosecuting authorities were obliged under domestic law to institute a criminal investigation. The court noted that the domestic authorities of the majority of contracting states that participated in military deployments were obliged to investigate alleged war crimes inflicted abroad by members of their armed forces under domestic law, and that the duty to investigate was “considered essentially autonomous.” Thus, Germany’s exclusive jurisdiction over its troops with respect to serious crimes and its obligation to investigate under both international and domestic law constituted “special features”. These “special features” taken in combination triggered the existence of a jurisdictional link for the purposes of Article 1 of the Convention in relation to the procedural obligation to investigate under Article 2.