The Kunduz Affair and the German State Liability Regime – The Federal Court of Justice’s Turn to Anachronism

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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.

The State Liability Regime in German Law

According to Art. 34 Basic Law in conjunction with § 839 Civil Code, the liability of the state is attached to the personal and civil liability of state officials. They are liable for an intentional or negligent breach of official duties with regard to third parties (see § 839 para. 1 1st sent. Civil Code). In principle Art. 34 Basic Law transfers the personal liability of state officials onto the state which is in the end the relevant entity obliged to compensate the injured party. Besides this “transfer function”, Art. 34 Basic Law institutionalizes the minimum core of state liability which is a crucial element of the German rule of law. The key to triggering state liability is to establish that an official duty with regard to third parties has been violated. Sources of such “official duties” are potentially all norms which form an inherent part of the German legal order. They stem most importantly from fundamental rights (Art. 1 to 19 Basic Law) but also guarantees of the ECHR, which forms part of the German legal order by force of its transformation, as well as rules of humanitarian law which in their customary dimension become automatically incorporated into the German legal system by Art. 25 Basic Law. “Official duties” refer to “third parties” if their objective is the protection of individuals. Hence, until now it has been purported by many voices in scholarship and presupposed within various court judgments that a breach of ius in bello norms by German state authorities may lead to state liability under Art. 34 Basic Law, § 839 Civil Code if these norms protect and entitle the individual. The Court rejects this understanding within its landmark judgment by finding that actions within armed conflicts are not covered by the scope of the state liability regime per se.

The Ratio Dedicendi – A Critical Close-Up

The Court asserts firstly that international law does not confer compensatory claims to individuals for the violation of ius in bello norms and treats questions of compensation as a purely interstate matter as Art. 91 of the First Protocol to the Geneva Conventions suggests. The individual is only protected indirectly via the principles of diplomatic protection (para. 16 et seq.). At the same time the Court stresses, however, that while international law does not require states to award compensatory claims to individuals for the violation of humanitarian law within their legal orders, it does not prevent them from doing so (para. 21). Even if it is assumed that the Court gives a correct account of the state of international law de lege lata here, it is unfortunate that it remains rather ignorant of the “turn to the individual” and its empowerment on the international plane which departs from the concept of mediation (see generally Anne Peters, Beyond Human Rights, CUP 2016).

The Court then turns to possible grounds for compensation in national law: Whilst it acknowledges that the wording of Art. 34 Basic Law in conjunction with § 839 para. 1 Civil Code does not exclude actions of the military within armed conflicts from its scope (para. 22), it assumes that the state liability regime would only apply in cases of “ordinary administrative action” thereby limiting its scope teleologically to “times of peace”.

Three main lines of argument lead the Court to this conclusion: The first is to a large extent “originalist” in nature (para. 29 et seq.): For the original legislator responsible for § 839 of the Civil Code which came into force in 1900 “war” had been an exceptional state not constrained by normative commands of the national legal order. With this perception of war as of a state “beyond the law” the very idea that individuals could be entitled to compensation with regard to any occurrences in the course of armed actions was incompatible. The fathers of the Basic Law were furthermore not able to foresee the extent of the current engagement of the Federal Army abroad whilst adopting Art. 34 Basic Law. In my view this line of argument is deeply flawed because it suffers from severe anachronisms: Obviously it is irrelevant what the perception of war had been at the end of the 19th century since § 839 Civil Code is now situated in an entirely different constitutional embedding which determines its interpretation. It is likewise not persuasive to refer to the limited “horizon” of the fathers of the Basic Law since it lies in the very nature of norms that they emancipate themselves from the will of the legislator with their entry into force becoming potentially subject to dynamic evolution. The very starting point of the Court’s argument is already flawed: In light of the wording of the relevant provisions which prima facie covers actions within armed conflicts the burden is with the Court to establish that the legislative intended to limit the scope of the state liability regime to times of peace. However, certain statutes adopted after 1949 point in the opposite direction: According to the amended § 7 of the Law on Liability of Civil Servants (Reichsbeamtenhaftungsgesetz) the German state is in principle liable towards foreigners for wrongful action by its officials irrespective of questions of reciprocity. Statues adopted with regard to the compensation of persons persecuted during the Nazi regime and forced laborers furthermore presuppose that actions in the course of a war can in principle give rise to compensatory claims (see § 8 Federal Indemnification Law (Bundesentschädigungsgesetz) and § 16 Law on the Creation of a Foundation “Remembrance, Responsibility and Future”).

The second major claim of the Court is systematic in nature (para. 33): It argues that some requirements of § 839 Civil Code do not fit the situation of armed conflicts. This assertion is likewise unconvincing, since it has posed no difficulties for courts to apply this norm in constellations similar to the Kunduz case in the past years.

The third line of argument – and probably most decisive to the Court – focuses on the dangers resulting from an application of Art. 34 Basic Law and § 839 Civil Code to actions within armed conflicts (para. 38 et seq.): Fearing a flood of claims, the Court sees the prerogative of the parliament to determine the budget endangered and Germany’s de facto capacity to participate in international coalitions severely diminished. Whilst these implications have to be given considerable weight in interpreting the relevant provisions, they can be averted by a strict interpretation of the relevant requirements of the relevant provisions and by no means require the Court to exclude actions of state officials within armed conflicts from the scope of the state liability regime per se.

Contrary to the Court’s reasoning it can well be argued that German constitutional law strongly indicates that actions of German militaries within armed conflicts are to be regarded as potential triggers for state liability and this mainly for three reasons.

Firstly, armed conflicts do not suspend the legal order according to the constitutional design of the Basic Law as it is indicated by provisions concerning the state of defence (see Art. 115 c or Art. 12a para. 3 et seq. Basic Law). Quite on the contrary: Fundamental rights enshrined in the constitution apply in principle even if German officials act extraterritorially and even if they act within armed conflicts. Whilst it is well arguable that their substantive content must be modified in light of provisions of the ius in bello, they remain the key normative guidelines for all state action (see Art. 1 para. 3 Basic Law). The state liability regime stands in a close relationship to these fundamental rights and is a means to give them effect subsequent to their violation. Since antecedent interim legal protection will be of no avail in constellations comparable to the Kunduz case, it is even more essential that infringements of fundamental rights in armed conflict settings trigger compensatory claims. Otherwise the extraterritorial application of fundamental rights within armed conflicts – as generally acknowledged in German doctrine – will be nothing more than an empty shell.

Secondly, the Basic Law is shaped by an openness and commitment towards international law (“Völkerrechtsfreundlichkeit”) which becomes apparent within manifold provisions and has been an inherent element of the jurisprudence of the FCC ever since (see only Order of the Second Senate of 14 October 2004 – 2 BvR 1481/04 –, para. 33). Whilst it can well be argued that the ius in bello does not confer the individual secondary claims for compensation for the violation of its norms, it is beyond doubt that some of its provision are directed exclusively at the protection of individuals entitling them directly. The Basic Law’s commitment towards international law in my view requires to interpret provisions in a way that gives full effect to the commands of international law. The state liability regime is a tool with the potential to foster compliance with ius in bello norms, to mitigate the deficiencies of the system of diplomatic protection and in the end to empower of the individual. It should be employed this way.

Thirdly, the Court’s judgment is incompatible with the jurisprudence of the European Court of Human Rights (ECtHR) which should have been taken into account in interpreting the relevant provisions: In light of the effective control exercised by Germany in Kunduz, the ECHR is applicable to the case at hand and Klein’s order remains attributable to Germany as the sending state due to his effective control of the events in question irrespective of the overall institutional embedding of the deployment of the German army (ISAF/NATO). As Art. 15 of the ECHR purports guarantees of the Convention do not lose their obliging force in the context of armed conflicts, even though a need for systemic integration with the rules of the ius in bello might arise (see only ECtHR, Case of Hassan v. UK, Application no. 29750/09). The Court – which was constitutionally obliged to take a closer look at the normative commands of the Convention – however remained ignorant of a long series of judgments in which the ECtHR asserted by reference to Art. 13 ECHR that states are obliged to install a compensatory mechanism in cases of “arguable claims” with regard to violations of Art. 2, 3 ECHR. The Case of Z and Others v. United Kingdom (2001) might serve here as an example. The ECtHR held therein that:

“[t]here should, however, be available to the victim or the victim’s family a mechanism for establishing any liability of State officials or bodies for acts or omissions involving the breach of their rights under the Convention. Furthermore, in the case of a breach of Articles 2 and 3 of the Convention, which rank as the most fundamental provisions of the Convention, compensation for the non-pecuniary damage flowing from the breach should in principle be part of the range of available remedies” (Application no. 29392/95, para. 109).

The same line of reasoning can be found in various other judgments including Kaya v. Turkey (judgment of 19 February 1998, Reports 1998-I, para. 107) – apparently the first judgment indicating that Art. 13 in conjunction with Art. 2, 3 ECHR requires a national compensatory mechanism –, Paul and Audrey Edwards v. The United Kingdom (Application no. 46477/99, 2002, para. 97), Anguelova v. Bulgaria (Application no. 38361/97, 2002, para. 161), McGlinchey and others v. The United Kingdom (Application no. 50390/99, 2003, para. 63, 66), Isayeva v. Russia (Application no. 6846/02, 2008, para. 163) and fairly recently O’Keeffe v. Ireland (Application no. 35810/09, 2014, para. 115). It is, however, an inevitable consequence of the Court’s judgment that no compensation is available to individuals who can arguably claim that their rights enshrined in Art. 2 and 3 ECHR have been infringed by actions of the Federal Army in the course of an armed conflict. Obviously, the ECtHR has relativized its dictum by stating that compensation should be available (only) “in principle”. This might be a loophole which will allow the ECtHR to deviate from its finding in the context of armed conflicts. Still I would submit that the cited jurisprudence gives the claimants in the case at hand enough reason to consider an application to the ECtHR against the Court’s judgment seriously (until now only one of the claimant’s filed an application to the ECtHR invoking a violation of the duty to investigate stemming from Art. 2 ECHR with regard to the termination of criminal proceedings against Colonel Klein, see Application no. 4871/16).

What now?

A constitutional complaint was lodged against the Court’s judgment on 28 November 2016. It can only be hoped that the applicants manage to overcome the general admissibility threshold and the FCC decides to admit the complaint. A key problem is that the FCC will very probably likewise come to the conclusion the Colonel Klein did not violate humanitarian law. Hence it might reject an admission due to the fact that the question of the scope of the state liability regime is not material to the case at hand. However, we can be sure of one thing: The debate will continue.

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Aurel Sari says

December 5, 2016

Perhaps I have missed this, but what is the basis for concluding that Germany had effective control over Kunduz?

Paulina Starski says

December 8, 2016

Thank you so much for your more than legitimate question, Aurel! My post has been indeed more than cryptic in that regard.

First of all, I would like to stress that the Federal Court of Justice excluded actions of German militaries abroad in the course of armed conflicts per se – going beyond the peculiarities of the Kunduz constellation – from the scope of the German state liability regime (regardless of whether the ECHR is applicable ratione loci or not). This is hardly tenable in light of the mentioned jurisprudence of the ECHR.

Now to issue of “effective overall control” and ISAF/Germany: This is obviously a crucial point that would have deserved much more attention than I have given it in my blog post (I will, however, deal with this matter in separate article. I am still reflecting on this controversial issue and happy to discuss!). It involves two problem layers: Is the ECHR applicable extraterritorially ratione loci and does it apply ratione personae?

Obviously the starting point with regard to the first problem layer is the Banković decision of the ECHR: “In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government” (Banković et al. v. Belgien et al., Appl. No. 52207/99, para. 71; see also Case of Al-Skeini and others v. UK, Application no. 55721/07, para. 149). In Issa and Others v Turkey the Court referred to „authority and control“ (Appl. No 31821/96, para. 71).

What does this mean for the ISAF constellation?

I do think that one can conclude in the end – albeit this if of course challengeable – that the ECHR is applicable ratione loci by two lines of argument:

First line of argument: According to SC Res 1386 (2001) the SC authorized “as envisaged in Annex 1 to the Bonn Agreement, the establishment for 6 months of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment”. This mandate was extended to regions outside of Kabul in Security Council Resolution 1510 (2003) and prolonged within numerous other resolutions.

While the key term appears to be “assistance”, it is crucial to take the de facto situation into account:

Whilst ISAF’s mandate was limited to assistance on paper it is essential that in 2009 Afghan authorities still did not bear “full security responsibility” as is reflected in NATO’s Lisbon Summit Declaration announced in 2010. Here it stated that “the process of transition to full Afghan security responsibility and leadership in some provinces and districts is on track to begin in early 2011, following a joint Afghan and NATO/ISAF assessment and decision. Transition will be conditions-based, not calendar-driven, and will not equate to withdrawal of ISAF-troops. Looking to the end of 2014, Afghan forces will be assuming full responsibility for security across the whole of Afghanistan” (NATO Press Release (2010) 155).

Germany served since June 2006 as the lead nation of the Regional Command North of ISAF headquartered in Mazar-e-Sharif (which covered nine provinces). It has been the largest contributor of troops in RC North, where it had stationed 3800 troops in April 2009.

In light of this I do have considerable doubts to come to the conclusion that the ECHR is not applicable to the case at hand.

In Banković the ECHR regarded the exercise of „some of the public powers normally to be exercised by that Government” (even if it is based on an acquiescence of the government) as sufficient to assume the Convention’s applicability ratione loci. In the end public powers are also exercised if the primarily responsible government is only assisted in the exercise of its powers. “Maintenance of security” – the key purpose of the whole ISAF operation – is obviously a governmental power and has been exercised by Germany as a lead nation in Northern Afghanistan.

Second line of argument: It appears to be rather arbitrary to assume that the killing of persons falls into the scope of the ECHR if it occurs during an occupation, but remains outside its scope if a comparable “generalized exercise of state authority” is not given. I find it relatively appealing to argue that “effective control” leading to the applicability of the ECHR is given if a state controls the circumstances that lead to a violation of the respective right. Hence, effective control over a person is already exercised if a state’s action affects individuals and objects thereby encroaching upon the negative dimension of rights. This has to be particularly the case, if the state in question has an institutionalized presence within the relevant territory as was the case in North Afghanistan.

As regards the second problem layer we are confronted with questions of attribution in the context of multinational military operations embedded within larger institutional settings (UN/NATO/ISAF). The fact that ISAF was mandated (and also established) as a peace-enforcing mission by Resolution 1386 (2001) of the Security Council inevitably leads us to the saga of the Behrami, Saramati and Al-Jedda judgments of the ECHR and the “ultimate authority and control test” which might lead to an attribution of the conduct of the troop-sending states to the UN. I find this test and the reasoning it is based upon – not only in light of the principles reflected in ILC’s DARIOs – unconvincing and unfeasible and strongly favor the “effective control” standard. Besides, contrary to the British High Court’s assertions in Serdar Mohammed v. Ministry of Defence [2014] EWHC 1369 (QB) I do think that ISAF can be distinguished from the KFOR constellation since the mandate-specific stipulations included in Security Council Resolution 1386 (2001) are even more indeterminate than those to be found in Resolution 1244. Within the ISAF command structure the troop-sending states retained substantial powers over their militaries. In any case actual command over the fatal airstrike – which is in my view the decisive point – was exercised by Colonel Klein, a German officer. This action is attributable to Germany as the troop-contributing state (which does not mean that I would exclude the possibility of a multiple attribution per se).