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German Federal Prosecutor Terminates Investigation Against German Soldiers With Respect to NATO Air Strike in Afghanistan

Published on April 29, 2010        Author: 

Constantin von der Groeben is a Ph.D. candidate at the University of Cologne, Germany and a LL.M. candidate at NYU School of Law. His Ph.D. deals with the applicability of the Laws of Armed Conflict to the War on Terrorism. He is a fellow of the Studienstiftung des deutschen Volkes (German National Academic Foundation).

Last week, on 20 April 2010, the German Federal Prosecutor closed the case against German soldiers, Colonel Klein and his First Sergeant Wilhelm, who were responsible for the NATO air strike near Kunduz last September.

Klein had requested the air strike against two fuel trucks which were stuck on a sandbank near the German camp in Kunduz. Up to 142 people were killed in the attack, and as was later revealed many civilians were among the dead. This inflamed the already heated debate over the role of the German Bundeswehr in Afghanistan, and the German participation in the unpopular NATO mission there. Eventually the German Defense Minister Karl Theodor zu Guttenberg called the air strike disproportionate.

Apart from some significant political repercussions, the Kunduz air strike eventually raised the question of criminal responsibility of German soldiers in Afghanistan, and the Federal Prosecutor opened an investigation against Klein and Wilhelm. It was the first time ever that soldiers of the Bundeswehr were investigated for war crime charges. Now, finally, the Prosecutor has decided to terminate the investigations on the grounds that neither Klein nor Wilhelm acted in violation of either international or ordinary criminal law.

The Decision in a Nutshell

Let me briefly summarize the major points in his decision.

First, the Federal Prosecutor characterized the situation in Afghanistan as a non-international armed conflict. Accordingly International Criminal Law was applicable in this case. In Germany, International Criminal Law has been implemented in the domestic legal order through the Völkerstrafgesetzbuch (VStGB – Code of Crimes against International Law). The relevant provision of the VStGB, which could have subjected Klein and Wilhelm to criminal liability, is § 11(1)(3) VStGB which regulates the war crime of deliberately causing disproportionate harm to civilians. This Provision in the German code is analogous to Art 8(2)(b)(iv) of the Statue of the International Criminal Court.

Second, applying the VStGB, the Federal Prosecutor found there was no violation of § 11(1)(3) because he concluded that neither Klein nor Wilhelm knew about the civilians’ presence near the gas tanker trucks when they ordered the attack, but rather assumed that they were only attacking Taliban. According to the Prosecutor, the German soldiers’ assumption was legitimate, because they had exhausted all possible means to investigate the situation and to assure themselves there were no civilians near the trucks. The fact that their assumption later turned out to be wrong did not make a difference: according to the Prosecutor, the decisive factor was the ex-ante assessment of the situation. Read the rest of this entry…