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

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.