Published: 17 August 2021 Author: Stefan Talmon
On 5 August 2021, the Neue Juristische Wochenschrift (NJW), Germany’s preeminent general law journal, published a letter to the editor by two judges of the Federal Supreme Court concerning the second “Kunduz decision” of the Federal Constitutional Court. In its Order of 18 November 2020, the Constitutional Court did not admit for decision a constitutional complaint against the final judgment of the Federal Supreme Court of 6 October 2016 dismissing on points of law a claim for compensation for alleged violations of international humanitarian law by a German army officer in Afghanistan.
On 3 September 2009, a group of Taliban fighters seized two fuel tankers near the German military base in Kunduz. When the German colonel in charge received information about the hijacking of the tankers, he requested air support from two US combat aircraft. After receiving repeated confirmation from an informant that only insurgents and no civilians were near the tankers, he gave the order to drop bombs, which destroyed both tankers and killed or injured numerous persons, including civilians.
In the media coverage of the case, it was widely reported that about 100 people, including many civilians, were killed in the air strike. Similar figures also appeared in scholarly articles.
The two judges writing to the NJW were members of the Senate of the Federal Supreme Court which had decided the case forming the basis of the constitutional complaint. The judges did not comment on the substance of the decision but, with the conclusion of the proceedings before the Federal Constitutional Court, felt it necessary to put the record straight with regard to the underlying facts. The judges wrote, inter alia:
“Unfortunately, the public has gained the impression that, on the orders of the German local commander, a crowd of people was bombed without warning, killing over 100 people, including many civilians and especially children. This representation is simply wrong with regard to the number and nature of the victims as well as the alleged lack of warning and is ultimately based on a propaganda success of the Taliban. The Senate has reliable information on the correct set of facts.
The two fighter aircraft were circling noisily from 1:08 a.m. until the bombing at 1:49 a.m. at a height of only 360 m (!) above the scene. Of the 100 people who were indeed present at the beginning, the majority immediately left in the direction of the village. Before the bombs were dropped, there were 30 to 40 people in the vicinity of the tanker trucks, and these were certainly no longer civilians, let alone children. After that, more than ten people could run to the parked vehicles. All of this can be clearly seen on the infrared images taken from the aircraft. There [in the federal prosecutor’s decision to terminate the proceedings] it is also stated that ISAF [the International Security Assistance Force established by the UN Security Council] found traces of only 12 to 13 people killed.”
These facts were immaterial for the decision of the Federal Constitutional Court which decided the case on points of law. It is, however, remarkable that two of Germany’s highest judges felt this clarification necessary because they considered these facts to be of great relevance for the political appraisal of the situation and the reputation of the Federal Armed Forces. They also found it unfortunate, from a human point of view, that the German commanding officer was still seen in a completely wrong light by the general public.
Category: Armed conflict and international humanitarian law
DOI: 10.17176/20220627-172753-0
