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

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.

Third, in addition to the VStGB, the Federal Prosecutor considered ordinary German criminal law. This body of law remains applicable during armed conflicts, but is mitigated in so far as International Law serves as a justification within domestic criminal law. This means that, as long as a military action is legitimate under International Humanitarian Law (IHL), it cannot lead to criminal responsibility under domestic criminal law. The Federal Prosecutor, having come to the conclusion that the attack was legitimate within the confines of IHL, consequently found that Klein and Wilhelm were not liable under domestic criminal law.

Fourth, although it was not decisive for the case, the Prosecutor dealt with the actual question of the proportionality of the attack. He came to the conclusion that, even if Klein had anticipated civilian casualties, the attack would have still have been proportionate because, under the significant pressures of the situation, he had chosen the most localized attack with the smallest available number and size of bombs.

Fifth, the Prosecutor rejected the reproach that Klein had not allowed the U.S. pilots to take precautionary measures before the bombing. He argued that, since Klein was legitimately assuming no civilians were near the trucks, he was not obliged to give an advance warning.

Finally, turning to the Rules of Engagement (RoE), the Prosecutor stated that RoE are not suited to limit authorizations under IHL because they carry no external validity. Hence a violation of RoE could not entail criminal liability as long as the military operation was permissible under IHL.

Comment and Critique

As is evident from the foregoing, the decision of the Federal Prosecutor is rich in interesting and debatable findings. Due to space constraints I shall further discuss only two of them.

First and most fundamental is the characterization of the situation in Afghanistan as a non-international armed conflict. Unfortunately we are not informed about the reasons for this decision, so we can only speculate that it was the growing strength of the Taliban, and the increasing intensity of the conflict, that led the Prosecutor to eventually conclude that the threshold of Art 3 of the Geneva Conventions was met. In the end, I believe his characterization of the conflict is right, but also not too surprising: it follows the general trend, not only in the international community but also in Germany (in a recent government declaration, the German Foreign Minister Guido Westerwelle has already stated that the German government sees the Situation in Afghanistan as an armed conflict.) With the decision of the Federal Prosecutor, we now see this trend validated by a judicial organ.

Second, let me turn to the Prosecutor’s actual decision about Klein’s and Wilhelm’s criminal liability, which initially seems correct, but is in fact not without flaws.

At the outset, it is important to note that the Prosecutor emphasized that the determination of proportionality depended on an ex-ante assessment of the German soldiers. Hence even if the attack had later been proven to be disproportionate, it would not have changed the criminal responsibility of Klein and Wilhelm. This is convincing, and even seems somehow apparent to a criminal lawyer because it appears obvious that no one can be blamed or held criminally liable for the result of an action that was by no means foreseeable at the time of the action. Still it is important that the Federal Prosecutor emphasized this because the difference between ex-ante and ex-post assessments seems to be the source of an ongoing misunderstanding when it comes to deciding issues of proportionality in such actions.

From an ex-ante point of view, assuming that the Federal Prosecutor correctly determined that neither Klein nor Wilhelm were aware of the presence of civilians near the trucks, and that they had exhausted every available means to clear the situation, it is indeed difficult to see how they can be blamed for the tragic casualties. However, I believe that at least Klein may still bear criminal responsibility: not because of his false assumption that he was only attacking Taliban, or because of failing to sufficiently investigate the situation, but because he did not give an advance warning before the attack. Art 57(2)(c) of Additional Protocol I to the Geneva Conventions (AP I) clearly formulates the obligation that “effective advance warning shall be given of attacks which may affect the civilian population, unless circumstances do not permit.” Although a violation of this obligation is not a grave breach of the Convention, and therefore does not amount to a war crime, it might very well entail criminal liability as an act of negligence under ordinary criminal law.

The decisive question is whether Klein was obliged to give an advanced warning. The Prosecutor denied he did. He argued that, given Klein’s lack of knowledge of the presence of civilians, the obligation to take precautionary measures became obsolete. I disagree and contend that the obligation to give an advance warning remains in force even where civilian casualties are not expected, provided that the circumstances permit them. There is a textual, a systematic, and a teleological argument for this contention: First, Art 57(2)(c) AP I speaks of attacks which “may” affect civilians, not of attacks which definitively will affect them. Second, Art 57 (2) AP I distinguishes between the obligation to verify that the objects to be attacked are not civilians (Art 57 (2)(a) AP I), and the obligation to give an advance warning (Art 57(2)(c) AP I). Finally, Art 57 (2) (c) AP I has to be understood as designed to provide protection to civilians also in situations of doubt. Nothing illustrates the necessity for such warnings better than this attack, which caused so many civilian casualties despite Klein’s legitimate conviction that he was only attacking the Taliban.

It follows that the obligation to give an advance warning did not lapse because Klein was convinced he was only attacking the Taliban. Derogation from that obligation is only allowed where a warning is not permissible with respect to the pursued military aim. This, in turn, makes the question of Klein’s military objective extremely relevant with respect to his criminal liability. If we, for example, assume that Klein had pursued a defensive military objective like protecting the camp, it is quite questionable that it would have required him to order an attack without warning, because the gas tanker trucks were stuck on the sandbank and could have easily been attacked after a warning. If, on the other hand, Klein’s military objective was offensive, such as taking out some high-profile Taliban targets, it could have been necessary to attack without precautionary measures because such measures could have alerted the Taliban targets.

It is remarkable that the Federal Prosecutor did not make a single mention of the actual military aim that was pursued through this attack. This is the real weakness of the decision. And this criticism is all the more applicable because the Prosecutor even goes as far as to deem the attack proportionate. One wonders how he can come to this conclusion without inquiring into the military objective of the attack.

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13 Responses

  1. Marie Tutko

    Surely if the Federal Prosecutor characterized the situation in Afghanistan as a non-international armed conflict then the provisions of AP1 are not applicable. APII does not include a requirement to give an effective advance warning although Henckaerts’ study suggested that it is a principle of international customary law equally applicable to both international and non-international armed conflicts.

  2. federico

    On the nature of the conflict in Afghanistan:
    The situation can be depicted as “protracted armed violence between governmental authorities and organized armed groups”, i.e. as an armed conflict. The Afghan government is thus engaged in an armed conflict – which is internal in nature – with the substantial support of the international community, militarily represented in Afghanistan by NATO-led ISAF and the Operation Enduring Freedom (OEF) coalition. The significant involvement of foreign troops acting independently against insurgents internationalizes the conflict. ISAF and OEF are operating with the consent of Afghanistan, but the Afghan government does not sit at the head of the chain of command. Consent or authorization is not enough to transform international troops deployed in Afghanistan into proxies of the Afghan troops. In legal terms, forces should be under the exclusive direction and control of Afghanistan, and not simply performing the functions entrusted to them by the beneficiary state and authorized by the United Nations. As the state hosting international troops has no control over the forces of the contributing states, their offensive operations are governed by the law of international armed conflict, namely the (customary, for the U.S.) rules of Additional Protocol I, the Hague and the Geneva Conventions. The conflict between the authorities of Afghanistan and insurgents, a conflict in which the state is fighting using its own armed forces against organized groups, which control Afghan territory, has been regulated by article 3 common to the Geneva Conventions. Since December 2009, it is covered by Additional Protocol II to the Geneva Conventions, following Afghanistan’s accession to the Additional Protocol in June 2009.
    On the airstrike:
    International humanitarian law prohibits attacks which may be expected to cause incidental loss of civilian life and injury to civilians which would be excessive in relation to the concrete and direct military advantage anticipated. Such a disproportionate attack is considered as indiscriminate, and a grave breach of the Law of War–i. e. a war crime–when committed wilfully. In Galic, the ICTY held that ‘willful’ includes an act committed with recklessness, whilst excluding mere negligence. It stated that a perpetrator who recklessly attacks civilians acts ‘willfully’.

  3. Constantin von der Groeben

    Dear Federico,
    Many thanks for your comment.
    On the nature of the conflict I agree that the situation in Afghanistan can be described as an “Internationalized non-international armed conflict”. Let me just ask you how you come to the conclusion that the international troops can be involved in an international armed conflict since this requires state parties on both sides of the conflict and the insurgents surly don’t qualify as a state party.
    Regarding the airstrike itself, I would not go as far as stating that Klein acted recklessly. He does therefore not bear criminal responsibility under International Criminal Law. But under German Criminal Law negligence is suffices, hence the prosecutor should have inquired whether the omission of the advance warning amounted to an act of negligence.

    Best,
    Constantin

  4. Constantin von der Groeben

    @ Marie Tutko

    That is correctly pointed out. Thank you for clarifying that. The obligation to give an advance warning is indeed contained in AP I which regulates international armed conflicts. However, it does apply as Customary International Law also to non-international armed conflicts. The prosecutor obviously shares this view since he deals with the omission of the warning.
    Best,
    Constantin

  5. federico

    @Constantin

    The nature of the conflict between insurgents and international troops is not determined unequivocally. According to Philip Aston, the international conflict is usually considered to have ended with the establishment of the transitional Afghan Government in June 2002. From that date, the armed conflict became of a “non-international” character inasmuch as the international forces are fighting on behalf of the Government.
    Insurgents are not a State, but the Supreme Court of Israel, in a landmark decision concerning the targeted killing of terrorist operatives, remarked that the terrorist organizations use military means par excellence, that in today’s reality a terrorist organization is likely to have considerable military capabilities, and that at times they have military capabilities that exceed those of states, to sustain that the normative system which applies to armed conflict between Israel and the terrorist organizations in Judea and Samaria is the international law dealing with armed conflicts.
    The letter of article 1 of Protocol II refers to a conflict in which the State is fighting using its own armed forces against organized groups, which control a part of the territory. Consequently, it seems to me impossible to apply Protocol II to the international troops cooperating in Afghanistan, and the sole solution to impede a normative void is to refer to Protocol I. Perhaps, instead of arguing on the nature of the conflict, I should have said that the normative system which applies to the foreign troops confronting insurgency is the law of international armed conflict.
    Best
    federico

  6. Tamás Hoffmann

    Dear Federico,

    I agree with you on the point that as treaty law APII is inapplicable to conflicts between international troops and insurgents but I cannot really understand why you consider the application of the law of international armed conflict as a remedy.
    If you only want to avoid “normative void” then this argument seems to be quite unpersuasive. After all, apart from APII there is the body of customary law of non-international armed conflict, which arguably contains a much broader regulation than APII.
    In this debate, I side with Constantin: International armed conflict is a conflict between States or States in statu nascendi (like national liberation movements). Unless there is a link between the Taliban and a State, this conflict cannot be qualified as international armed conflict.
    Your reference to the Targeted Killing Judgment is not quite appropriate as that verdict concerned armed conflict in occupied territories and that led the Court to its (in my opinion, erroneous) judgment.

    Best,

    Tamás Hoffmann

  7. federico

    @ Tamás

    Actually, J.M. Henckaerts and L. Doswald-Beck numbered as customary rules applicable in non-international armed conflicts a series of provisions related to “Precautions in Attack”, in particular, Rule 18, Rule 19 and Rule 20 of their study. Those rules originate directly from Protocol I. Both Constantine and Marie, and perhaps the prosecutor, agreed on their inapplicability just for the reason that those rules concern international armed conflicts.
    I cited the targeted killing case to point out that there are opinions which sustain that a confrontation between states and non-state actors with impressive military capabilities, can be considered an international conflict.
    Best,
    federico

  8. Constantin von der Groeben

    @ Federico

    Consider that the Supreme Court of Israel based its characterization of the conflict as international armed conflict mainly on the argument that the territories are under Israeli occupation and that a situation of belligerent occupation is always regulated through the laws of international armed conflicts. This reasoning is debatable and I don’t agree with it, but even if you do, you cannot derive from it the general proposition that a conflict between non-state actors and international troops is an international armed conflict. There is no ground for such a proposition in Art 2 GC. The situation in Afghanistan, being very different from the one in Israel, can therefore only be described as an internationalized non-international armed conflict and AP I is not directly applicable.

  9. federico

    @ Constantin
    I agree with you: Afghanistan, compared to the OPT, is a very different situation and the points I made are weak. I wonder if there is under international law any legal regime applicable to events such as that under discussion. In one of your post you said AP I does apply as Customary International Law. Accordingly, during an internationalized armed conflict the operations of the foreign forces are regulated by the rules of Protocol 1 which attained the status of customary law? Is this the final outcome?
    Best
    federico

  10. Dapo Akande

    Frederico,

    I am one who takes the view that a conflict between a State and a non-State group which takes place on the territory of another State can be governed by the rules applicable in international armed conflicts. BUT only where that conflict takes place without the consent of the State on whose territory the fighting is happening. This is not the case in Afghanistan so I don’t see how what is going on there can be characterised as an international armed conflict.

    I agree that Additional Protocol II does not apply but this is not because the Taleban does not have sufficient control of territory. Media reports suggests that they do. In a post last year I explained by why AP II does not apply. See here http://www.ejiltalk.org/afghanistan-accedes-to-additional-protocols/

  11. federico

    I am sorry. Probably I am annoying you all with my insistence. My point is that in Afghanistan there is not a situation of banditry, unorganized and short-lived insurrection, or terrorist activities (which are not subject to international humanitarian law). It is a situation of protracted armed violence between governmental authorities and organized armed groups, i.e. an armed conflict. This armed conflict is internal (or non-international) and thus regulated in accordance with APII, ratified by AFG in 2009. A large amount of troops belonging to foreign Powers operate (nominally) in support to the Afghan government. There is no relationship of dependency or control, so those troops are not proxies of the Afghan government. There are two distinct bodies of law on the conduct of hostilities, and consequently only two different classes of armed conflict. The intervention of foreign troops does not create a third class of conflict, but “internationalizes” the ongoing conflict, i.e. transforms it in an international armed conflict. Consequently, NATO troops are obliged to respect the rules of international armed conflict enshrined in the instruments that the respective countries ratified and those that attained the status of customary law, including Article 57 (2) (c) of API.

  12. Julian

    @ frederico

    I would say that for a situation to qualify as an IAC (be it internationalised or not) resort to armed force **between** states (i.e. on both sides) is needed (+ arguably the case Dapo mentions). A prima facie NIAC internationalises if the actions of the party to the conflict not being a state become attributable to a state under the pertinent test of state responsibility. For this test it is irrelevant whether and how the STATE party to the conflict is supported by one, two or x other states. A conflict does not become an IAC by virtue of several states fighting alongside against a non-state armed group. In case of Afghanistan, hence, CA3 and Custumary Law applies. Because the customary law on conduct of hostilies overlap greatly with the relevant provisions in AP1, as you rightly pointed out, the outcome is however likely to be the same on the question of what is needed in terms of warning.
    Whether AP2 is applicable is a different question, which is governed by the standard that AP2 contains in article 1. If you follow Dapo’s link, you see that it is questionable whther the Taliban can meet the requirements set forth therein. It seems to me that Dapo’s view however is based on a reading of AP2 whereby non-state armed groups have to apply humanitarian law for AP2 to become applicable. This is not the only reading of AP2 art 1, so you may still argue that AP2 is applicable. BUT there is no automatic correlation between qualification as a NIAC and the appliacbility of AP2.

  13. Tamás Hoffmann

    Dear Federico,

    I think you have misunderstood the findings of the Prosecutor to a certain extent. In my understanding, the Prosecutor did not say that the obligation to give advance warning was inapplicable because of the existence of a non-international armed conflict, but he found that the defendants did not have any knowledge of the presence of civilians.
    In other words, the Prosecutor did not deny the general applicability of the rule, but merely its application in a situation where the defendants did not have any reason to presume the presence of civilians.
    In re the “internationalizing” effect of foreign military intervention. I consider that doctrine deeply flawed and unsubstantiated. After all, even if there is a massive foreign intervention, that will not change the basic situation of non-state actors fighting against state forces. There might be, however, a parallel international and non-international armed conflict, and this is the point where the question of state consent to the foreign intervention might come into the picture.