Published: 18 March 2021 Authors: Philipp Dürr and Stefan Talmon
After the fall of the Taliban regime that had sheltered the al-Qaida terrorist organisation in Afghanistan, the UN Security Council established the International Security Assistance Force (ISAF) by resolution 1386 (2001) of 20 December 2001 to assist the Afghan Interim Authority and its successors in the maintenance of security, so that the Afghan authorities as well as UN personnel and other international civilian personnel engaged in reconstruction and humanitarian efforts could operate in a secure environment and to prevent the re-emergence of the Taliban regime. Germany contributed troops to ISAF which arrived in the country in January 2002.
On 3 September 2009, two U.S. fighter jets which formed part of ISAF bombed two Taliban-hijacked fuel tanker trucks stuck in river sands near the German military base in Kunduz. The commander of the base, Colonel Georg Klein, had requested the airstrike because a few months earlier an informant had reported on plans by the Taliban to attack the German military base with fuel tankers. After U.S. drones had transmitted a picture of the situation, Colonel Klein decided to bomb the tankers. Contrary to the available information, however, there were not only Taliban fighters in the immediate vicinity of the trucks, but mainly civilians. The bombing destroyed the trucks and killed the Taliban fighters and more than 90 civilians.
Several relatives of civilians killed in the bombing brought claims for damages against Germany before the German courts for breach of official duty as a result of alleged violations of international humanitarian law by Colonel Klein. The claimants argued that the lack of a so-called “show of force”, a low-altitude fly-over by the fighter jets in order to warn and scatter people, as well as the use of force itself violated international humanitarian law. The Regional Court in Bonn dismissed the claims at first instance because it could not be shown that Colonel Klein had knowledge of the presence of civilians in the vicinity of the fuel tankers. This judgment was confirmed by the Higher Regional Court of Cologne, and by the Federal Court of Justice. The courts ruled, inter alia, that there was no violation of international humanitarian law. The claimants challenged the dismissal by the civil courts, including the Federal Court of Justice, of their claims for breach of official duty before the Federal Constitutional Court by way of a constitutional complaint.
On 18 November 2020, the Federal Constitutional Court declined to consider the constitutional complaint. In its order, the Court addressed, inter alia, two questions of international law. First, the Court examined whether under international law individuals can claim damages against a State for violations of international law. The Court held that, despite the emancipation of the individual in international law, there was no general rule of international law to that effect. In this context, the Court examined the developments with regard to the legal personality of the individual in international law. The Federal Constitutional Court stated:
“The mediatisation of the individual by the State in international law has undergone significant transformations since the Second World War due to the development and codification of international human rights protection, which is increasingly interwoven with international humanitarian law. Above all, the human rights guarantees have a character which genuinely protects the individual and have been increasingly condensed over time. Rules specifically dealing with the individual in the conflict of laws also confirm that the individual can be the subject of direct rights and obligations under international law. Concomitant with this development, for example, the International Court of Justice increasingly recognises a liability towards the individual for violations of international law (see ICJ, Advisory Opinion of 9 July 2004 – Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, ICJ Reports 2004, 136 at 198, para. 153). The individual can also be held responsible under international criminal law and held accountable for his or her actions. In this respect, the individual is at least partially recognised as a subject of international law.”
These developments, however, were not sufficient to give rise to a right to compensation on the part of the individual. The Constitutional Court stated:
“In principle, it is only the injured individual’s State of nationality – as the original subject of international law – that may bring a secondary-law claim for internationally wrongful acts of a State against foreign nationals. In this respect, the individual’s rights go further than their protection through secondary-law claims. There is no general rule of international law according to which the individual would be entitled to claim damages or compensation against the responsible State in the event of violations of international humanitarian law. In this respect, the individual remains connected to international law only through his home State.”
There are also no specific rules of international humanitarian law that can serve as a legal basis for claims by individuals. The Federal Constitutional Court held:
“In particular, neither Article 3 of the IV Hague Convention nor Article 91 of the Additional Protocol to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of International Armed Conflicts of 8 June 1977 establish claims for damages or compensation by individuals in the event of possible violations of international humanitarian law.”
The second international law question addressed by the Federal Constitutional Court was whether the bombing of the fuel tankers constituted a violation of international humanitarian law. The Court emphasised that “not every killing of a civilian in the course of armed conflict [constitutes] a violation of international humanitarian law.”
The Federal Constitutional Court did not itself examine the alleged violations of international humanitarian law but relied on the findings of the Federal Court of Justice. The latter had found that the airstrike did not involve a culpable violation of international humanitarian law, but that, on the contrary, Colonel Klein’s action was permissible under international law. The Federal Court of Justice stated:
“The fuel tankers destroyed by the ordered air strike and the Taliban fighters killed in the process were legitimate military targets (cf. the first sentence of Article 50 (1) of Protocol I in conjunction with Article 4 (A) (1), (2), (3) and (6) of the Third Geneva Convention relative to the Treatment of Prisoners of War of 12 August 1949, sentence 2 of Article 52 (2) of Protocol I).”
The Federal Court of Justice also set out the relevant rules of international humanitarian law with regard to the targeting of civilians, including the principle of proportionality and the prohibition of excess. The Court noted that “collateral damage such as the death of civilians was not necessarily disproportionate just because the military advantage (e.g., the weakening of the enemy troops or their means of warfare) was only short-term and not decisive for deciding the conflict.” These statements, however, were merely obiter as the Court found that Colonel Klein had no (objective) reason to believe that, in addition to the Taliban fighters, there might be any civilians protected under international humanitarian law in the immediate vicinity of the hijacked fuel tankers. The question of knowledge was to be determined from an ex ante perspective. The Federal Court of Justice stated:
“When assessing the question of whether there exists a (culpable) violation of international humanitarian law, the standard of care to be applied is not to determined ex post. It is rather the – fact-based – expectations at the time of the military action that is decisive. The fact that military decisions in a combat situation are to be assessed from an ex ante perspective of the commander already follows from the wording of the provisions of the First Additional Protocol to the Geneva Conventions concerning the protection of the civilian population. According to these provisions, when planning and carrying out an attack, it is decisive whether casualties among the civilian population ‘may be expected’ (cf. Article 51 (5) (b), Article 57 (2) (a) (iii) Protocol I). A military commander can make the assessment required under Article 57 Protocol I (precautions in attack) only on the basis of the knowledge available to him when planning and carrying out the attack. The commander must not be reproached for circumstances which he neither knew nor had to know, but which only emerged at a later stage.”
In this connection the Federal Court of Justice referred to the interpretative declaration made by the Federal Republic of Germany at the time of ratification of Protocol I which read in the relevant part as follows:
“It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.”
This view takes account of the complexities of decision-making on the battlefield and the often limited information available to commanders at the time of decision making. Assessing questions of proportionality and military necessity from an ex ante perspective is thus most in line with reality and State practice.
The Federal Court of Justice held that in the specific planning and decision-making situation, Colonel Klein had “taken all practically possible reconnaissance measures” to determine that no civilians were present in the vicinity of the fuel tankers. There was also no need to take up the suggestion of the fighter pilots to conduct a “show of force” to warn people present before bombing the tankers because, “according to all available sources of information, the presence of civilians was not to be expected”. The Federal Court of Justice continued:
“In addition, the specific circumstances spoke against such a warning, because this would also have thwarted the legitimate military objective of combating the Taliban present at the scene (cf. the second part of the sentence in Article 57 (2) (c) Protocol I).”
In its Order of 18 November 2020, the Federal Constitutional Court agreed with the Federal Court of Justice that “a violation of international humanitarian law was not evident” because Colonel Klein had exhausted sources of information available at the time he ordered the air strike. From the required ex ante perspective his decision to attack was based on a valid prognosis that no civilians were present.
In dismissing the constitutional complaint, the Federal Constitutional Court affirmed its own jurisprudence and that of the Federal Court of Justice that there is no legal basis in general international law for what it termed “secondary-law claims” for compensation for violations of international humanitarian law brought by individuals against foreign States. Regardless of the developments in the field of international human rights protection after the Second World War which have led to the recognition of the individual as a partial subject of international law, it is still generally only the State of nationality that can bring a claim for compensation by way of diplomatic protection. The Constitutional Court correctly distinguished between primary rights of the individual to respect for international law and secondary-law claims for damages or compensation in the case of violations of primary rights. It is especially with regard to the first that international law has seen considerable change. There are now numerous treaties in the field of human rights and international humanitarian law that do not just lay down obligations of States benefiting the individual but create subjective rights for the individual. The individual is no longer just the beneficiary of protective obligations but the holder of subjective rights under international law. Whether this is actually the case must be established by way of treaty interpretation for each right in question. Being the holder of a subjective right vis-à-vis a State, however, does not automatically mean that the individual can bring a compensation claim under international law against the State if the right has been violated. The European Convention on Human Rights (ECHR) is one of the few treaties that provide an enforceable right to compensation of the individual in case of a violation of a substantive right under the Convention. There are no comparable international humanitarian law treaties. In the absence of a treaty-based right to claim compensation, it is only the State of nationality which is entitled to bring such a claim by way of diplomatic protection.
The Federal Constitutional Court’s decision may be disappointing to claimants and may be considered by critics as retrograde and not in line with the zeitgeist of the emancipation of the individual in international law. However, it must be recalled that the European Court of Human Rights (ECtHR) confirmed that there was no legal basis for compensation claims for violations of international humanitarian law outside the ECHR. For example, in Associazione Nazionale Reduci and 275 others v. Germany, the ECtHR stated that:
“none of the Conventions referred to by the applicants establishes any individual claims for compensation. [In 2000] there was no legal provision, whether of an international or of a domestic character, supporting the applicants’ claims [of compensation] against the Federal Republic of Germany. Furthermore, the applicants have been unable to point to any case-law in their favour.”
While the Federal Constitution Court reaffirmed in the Kunduz case that there is no basis in general international law for individuals claiming compensation for violations of international humanitarian law directly from States, the Court ruled back in 1996 – albeit obiter – that there is also no rule of general international law preventing States from paying compensation for such violations directly to individuals. There is no exclusivity of compensation claims made by States. Germany would thus not be prohibited from allowing individuals to bring claims for compensation for violations of international humanitarian law on the basis of its domestic law.