On 6 October 2016 the Federal Court of Justice (henceforth “Court”) decided on an appeal against the Higher Regional Court of Cologne’s dismissal of two actions for compensation brought against the Federal Republic of Germany (III ZR 140/15, only available in German): Abdul Hannan sought compensation for the death of two of his sons in the amount of 40.000 Euro, Qureisha Rauf, a mother of seven, sought alimentation for the death of her husband and father of her children in the amount of 50.000 Euro. The death of their relatives was the result of a fatal airstrike ordered by Colonel Klein who was in charge of the Provincial Reconstruction Team in Kunduz in the northern part of Afghanistan. The PRT was institutionally embedded in the framework of the International Security Assistance Force (ISAF). Whilst Klein was operationally subordinated to the ISAF commander and in the end the NATO Commander-in-Chief he remained within the chain of command of the German Federal Army ultimately being subject to orders of the German Ministry of Defense. The ordered strike was directed against two fuel tanks previously stolen by Taliban from PRT’s premises which were stuck in a sandbank close by. Fearing that these tanks would be used for an attack against the PRT camp Klein commanded their destruction after receiving the information of a military informant that no civilians were present at the relevant location which infrared pictures delivered by US-American fighter aircrafts seemed to support. In retrospect these assumption proved wrong: The attack led to the death of 100 to 150 people, mostly civilians who gathered around the fuel tanks out of curiosity, others were apparently forced by the Taliban to assist with the recovery of the tanks (with regard to the criminal investigation against Klein see here).
A Legal Bombshell
The lower courts were unable to find that Germany incurred liability based on Art. 34 Basic Law in conjunction with § 839 German Civil Code since the claimants failed to establish that Klein violated ius in bello norms – Art. 51, 57 of the First Additional Protocol and Art. 13 of the Second Additional Protocol to the Geneva Conventions were particualrly in question. The Court, however, went beyond that by asserting that the state liability regime does not apply with regard to actions of the German army in the context of armed conflicts per se. The Court’s finding can be considered a legal bombshell since this question has been left open within previous judgments (see the Court’s “Varvarin” judgment of 2nd November 2006, III ZR 190/05). Until now both the Court itself as well as the Federal Constitutional Court (FCC) applied an “even if” argumentative strategy in similar cases: Not explicitly deciding whether actions within armed conflicts fell into the scope of the liability regime, they limited themselves to finding that even if they did, compensatory claims would remain unsuccessful since other conditions – especially a breach of a duty on part of German state officials – were not met (see FCC, “Varvarin” decision of 3th August 2013 – 2 BvR 2660/06, 2 BvR 487/07 – available in English).
Viewed against the background of German constitutional law as well as obligations stemming from international law – especially the European Convention of Human Rights (ECHR) – this decision suffers from methodological and substantive deficiencies and is hardly tenable. Read the rest of this entry…