(Not) Investigating Kunduz and (Not) Judging in Strasbourg? Extraterritoriality, Attribution and the Duty to Investigate

A 2009 airstrike near Kunduz, Afghanistan, that led to more than 100 casualties and was ordered by a German colonel will be the subject of oral arguments in the Grand Chamber (GC) of the European Court of Human Rights (ECtHR) in the case of Hanan v. Germany, tomorrow, 26 February 2020.

On 4 September 2009, German Colonel K., who headed the Provincial Reconstruction Team (PRT) in Kunduz, which formed part of the International Security Assistance Force (ISAF) troops, ordered an airstrike on a group of individuals that killed the eight- and twelve-year-old sons of the applicant, Mr. Hanan. They had assembled around two fuel trucks that were stolen by Taliban and perceived to be a threat to the PRT base.

Mr. Hanan has asked the ECtHR to decide whether Germany violated its duty to investigate. Whether the Court will do so depends on its findings on jurisdiction and attribution. 

Jurisdiction: The Never-Ending Story Part I

In principle, the concept of jurisdiction under Article 1 of the European Convention on Human Rights (ECHR) is rather straightforward. It is uncontested that a state exercises jurisdiction on its own territory and that the exercise of jurisdiction outside a State’s territory is only an exception. Two clear-cut exceptions exist: first, states exercise jurisdiction when a state agent exerts authority or control over individuals by holding a person and thus effectively controls that person; second, jurisdiction will be exercised in case of effective overall control over a territory.

There are, however, grey areas, which make the concept of jurisdiction so difficult to assess.  Every story about jurisdiction’s grey areas must start with the 1999 Banković v. Belgium decision. As is well known, the GC held that no jurisdiction is exercised through extraterritorial airstrikes.

While in Hanan the deaths were also caused by an airstrike, the case is different from Banković insofar as Germany had established a military presence on the ground, similar to the 2011 Al-Skeini v. UK and the 2014 Jaloud v. Netherlands judgements. In both cases, the GC discussed matters of territorial as well as personal control at length (Al-Skeini, paras. 130-150; Jaloud, paras. 137-155). In Al-Skeini, the UK was an occupying power that “assumed authority and responsibility for the maintenance of security in south-east Iraq” (para. 149). In Jaloud, the Netherlands’ territorial control was far weaker, as it was not an occupying power and the UK exercised operational command in the area. The Netherlands, however, “assumed responsibility for providing security in that area [….] and retained full command over its contingent there” (para. 149). The personal nexus in Al-Skeini was based on an exchange of fire while patrolling the countryside; Mr. Jaloud was shot while passing through a checkpoint.

In Hanan, Germany equally provided security as this was ISAF’s explicit task, according to the United Nations Security Council (UNSC) resolutions. In addition, it exercised full command: Colonel K. commanded more than 1,500 German soldiers in Kunduz, just 7 km away from the site of the airstrike. A German officer also commanded the Regional Command (RC) in Mazār-i-Sharīf, with more than 5,500 soldiers.

There are two differences though: first, Hanan takes place in a non-international armed conflict (NIAC). The GC addressed the relationship between humanitarian law and human rights law in Hassan v. UK (2014) and found the ECHR to apply also during armed conflict. In a situation of armed conflict, however, factually jurisdiction might not be exercised due to a lack of control. Since more than 7,000 ISAF soldiers were permanently stationed in the area, they outnumbered Taliban forces, established checkpoints, and went on regular daily patrols, it has to be concluded that Germany exercised jurisdiction also in this NIAC situation in Afghanistan.

Second, the deaths in Al-Skeini and Jaloud were not caused by airstrikes but by soldiers on the ground. Banković showed that this does make a difference – but only if there is no military presence on the ground. While the ECHR’s extraterritorial application is the exception to the rule, every time the Court ruled on a situation in which some elements of the personal model and some elements of the territorial model existed, it found the jurisdiction criterion to be fulfilled. If it were to decide differently in Hanan, it would break away from its well-established case law.

The conclusion that Germany exercised jurisdiction is further supported by Güzelyurtlu v. Cyprus and Turkey (2019). Here, the GC found that if “authorities of a Contracting State institute their own criminal investigation […] concerning a death which has occurred outside the jurisdiction of that State, […] the institution of that investigation […] is sufficient to establish a jurisdictional link for the purposes of Article 1” (para. 188). While this finding is generally framed and should thus be applied to Hanan, a word of caution is in place as Güzelyurtlu might be differentiated on the facts from Hanan: first, since Güzelyurtlu did not involve any extraterritorial investigatory duties, the judgment in Hanan might be confined to shortcomings of the investigation on German territory only. However, as will be discussed below, omissions to interview witnesses and the lack of independence of the investigating authorities are territorial flaws. Second, the GC might not rely on the Güzelyurtlu at all – and does not have to, as just shown – as Güzelyurtlu involved a duty to judicially cooperate in criminal investigations which is absent in Hanan.

Attribution – The Never-Ending Story Part II

If the Court were to rely on Güzelyurtlu, the issue of attribution would not be a problem, as the investigating authorities’ acts and omissions can only be attributed to Germany. Attribution, however, becomes tricky if the underlying act leading to the investigation, i.e. the airstrike, is decisive. In its controversial 2007 Behrami and Behrami v. France and Saramati v. France, Germany and Norway decision, the GC attributed the actions carried out by the named States in Kosovo to the UN. Yet in its 2011 Al-Jedda v. UK judgment, the GC arrived at a different conclusion, attributing the Iraqi deaths to the UK. The GC bases its differentiation of the two situations mainly on how “the international security presence in Kosovo was established by [UNSC] Resolution 1244” (para. 83). In this resolution, the UNSC “decide[d] on the deployment in Kosovo, under United Nations auspices, of international civil and security presences”; authorised “member States and relevant international organisations to establish the international security presence in Kosovo”; and decided that there should be “substantial North Atlantic Treaty Organization participation” in the security presence, which “must be deployed under unified command and control”.

Hanan compares largely with Al-Jedda, but not Behrami. The only similarity to Behrami lies in the fact that ISAF was established after the UNSC resolution was adopted. Just like in Al-Jedda, foreign troops were already in Afghanistan. Also, no civil UN presence was established in Afghanistan or Iraq; only in Kosovo. The wordings of the UNSC resolutions on Afghanistan resemble those on Iraq, not Kosovo. While UNSC Resolution 1244 underlines that deployment in Kosovo takes place under “United Nations auspices,” such language is absent from the Iraq and Afghanistan resolutions. Also, the reporting duties differ. In Kosovo, the Secretary General, “represent[ing] the general interests of the UN” (Behrami, para. 134), is requested report to the UNSC (Resolution 1244, para 20). In both Iraq and Afghanistan, it is the States that are requested to report to the UNSC (see e.g. Resolution 1546, para. 31; Resolution 1833, para. 6). Lastly, “[NATO] participation […] under unified command and control” was foreseen in an annex to Resolution 1244. The ISAF resolutions neither contain such an annex, nor establish NATO participation or the need for unified command and control. Thus, the acts are attributable to Germany.

This result is supported by the Jaloud case, in which the GC does not engage with questions of attribution in detail, and does not even mention Behrami. While discussing “jurisdiction”, it underlines that the Dutch officers retained “full command” over their military personnel (para. 143) – which is a matter of attribution, as jurisdiction concerns control over the victims and attribution concerns control over acting personnel (Marko Milanović, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties, HRLR 2008, 446). Under the heading “Attribution”, the Court emphasizes that the “facts giving rise to the applicant’s complaints derive from alleged acts and omissions of Netherlands military personnel and investigative and judicial authorities” (para. 155). The same is true for Hanan: German officers equally retained “full command” and the facts giving rise to the applicant’s complaints derive from alleged acts and omissions of German military personnel and investigative and judicial authorities. Thus, comparing Jaloud with Hanan leads to the conclusion that the acts – and omissions – in question have to be attributed to Germany and the complaint is admissible.  

The Duty to Investigate Casualties Caused by Use of Force

Turning to the merits, Mr. Hanan alleges a breach of the procedural limb of Article 2 and Article 13 of the ECHR. This post confines itself to a few short observations on the breach of the duty to investigate. The Court has demanded again and again that in a situation in which a person has been killed through the use of force, a prompt, effective and impartial investigation must follow. This investigation must be capable to determine whether the use of force was justified or not in the specific circumstances of the case. In Hanan, the ECtHR will have to decide whether the investigation was effective; whether it was prompt enough; whether Mr. Hanan was sufficiently involved in the investigation; and whether the German authorities were independent enough.

How does the Court assess whether the requirements were met? As a ground rule, the duty to investigate also applies “in difficult security conditions, including in a context of armed conflict.” (Al-Skeini, para. 164). At the same time, the Court acknowledges that “concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed” (ibid.). In Jaloud, the GC reiterated that it “is prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population (…) clearly included armed hostile elements” (para. 226). This consideration applies to the Hanan situation as well and seems to allow the States a certain leeway in the conduct of the investigation. But the GC then concludes that the failings of the investigation in Jaloud, even when taking the particular difficulties in account, “cannot be found [to be] inevitable” (para. 227). In fact, this is a rather strict standard imposed by the Court. In contrast, the joint concurring opinion in Jaloud is less strict. The seven (!) judges underline twice the Court’s jurisprudence that “circumstances may compel the use of less effective measures of investigation” (paras. 4 and 6). Consequently, they only find  one violation and not four violations as the majority (see also here).

No matter which yardstick the Court will apply, it has good reasons to hold that Germany has not fulfilled its duty to investigate, especially with regard to promptness and independence. Inter alia, the Battle Damage Assessment team that carried out initial military investigation was set up by the same officer who ordered the strike, Colonel K. The team arrived at the scene eleven hours after the airstrikes (see here, p. 70), although ISAF rules call for a two-hour period. Another investigation was conducted by the German military police. However, the German RC commander explicitly ordered the officer who led the investigation to support Colonel K. in the follow up to the airstrikes (see here, p. 77). One also has to doubt the effectiveness of the investigation as no interviews with eye-witnesses, like the pilots – who in vain urged the German colonel to show force before striking – the surviving tanker-driver or relatives of the victims took place.

Turning to the investigation in Germany one again has to differentiate between the effectiveness of the investigation on the one hand and the independence of the investigators on the other hand. The Federal Public Prosecutor (Generalbundesanwalt), which led the civil investigations, equally failed to interview important eye-witnesses, such as the pilots, the tanker-driver or the next of kin, like Mr. Hanan. That the German Parliament’s commission of enquiry later interviewed the pilots and the tanker-driver does not make up for this omission but only shows the importance to interview eye-witnesses. This has also been underlined in the established case law of the ECtHR. Furthermore, the Federal Public Prosecutor is subject to directives of the German Ministry of Justice. Because of this hierarchy, last year the European Court of Justice concluded  that German prosecutors are not independent enough to issue a European arrest warrant (here, paras. 78-80). Thus, even if the Court should base its jurisdiction only on Güzelyurtlu, it would find violations of Germany’s duty to investigate.

Conclusion: Not Investigating Kunduz but Judging in Strasbourg

As the airstrike near Kunduz was not fully investigated, falls within Germany’s jurisdiction, and is attributable to Germany, the Grand Chamber in Strasbourg should judge upon the merits and follow the applicant’s complaint. This would render justice to the airstrike’s victims, help protect human rights in situations of armed conflict outside Europe, and thus also strengthen European states’ legitimacy when acting extraterritorially.

Disclosure: during the author’s legal clerkship from 2009 to 2011, he worked for the European Center for Constitutional and Human Rights for nine months, which has represented Mr. Hanan since 2009. During this time, he was involved with the criminal complaint against Colonel K. and the request for a judicial decision in the framework of proceedings to force criminal proceedings (Klageerzwingungsverfahren).