European Court of Human Right’s Grand Chamber has dismissed a claim launched by an Afghan man, Abdul Hanan, who challenged the investigation into a NATO airstrike which killed his two sons, along with scores of others.

In 2009, German Colonel Georg Klein, commander of the Kunduz Provincial Reconstruction Team (PRT), ordered an airstrike against two stationary oil tankers, surrounded by crowds of civilians, that had been commandeered by Afghan insurgents. Over 100 people, mostly civilians, were killed or injured when two US fighter jets carried out the orders of Colonel Klein. Two of the civilian victims were Abdul Bayan and Nesarullah, aged 12 and 8 years old respectively, both sons of Abdul Hanan.

Although an investigation was opened up by German authorities, it was then closed down in April 2010, and no further action was taken. All other German authorities refused to investigate the matter, and no formal apology has ever been offered.

“Colonel Klein failed to sufficiently verify whether and how many civilians were in the vicinity of the tankers prior to the attack. The German government and military tried to protect Colonel Klein and the other responsible parties by covering up the consequences of the airstrike”, The European Center for Constitutional and Human Rights (ECCHR) says.

The German government’s position remains that the airstrikes were “permissible under international law and thus justified under criminal law”.

“The Federal Prosecutor General determined that Colonel K. had not incurred criminal liability mainly because he had been convinced, at the time of ordering the airstrike, that no civilians were present at the sand bank [where the tankers were located]”, the Court observed when examining the German investigation into the attack.

Colonel Klein, “had thus not acted with the intent to cause excessive civilian casualties, which would have been required for him to be liable under the relevant provision of the Code of Crimes against International Law. His liability under general criminal law was ruled out [by German authorities] due to the lawfulness of the airstrike under international humanitarian law”, the Court explained.

The ECCHR assisted Abdul Hanan in bringing his case to the European Court of Human Rights (ECtHR) in Strasburg, Germany in 2016. The case was ultimately heard in February 2020 in the ECtHR’s highest court, the Grand Chamber. Abdul Hanan’s lawyers argued that the German Federal Prosecutor’s probe was “insufficient”, as they had failed to conduct “a genuine and thorough investigation”.

The European Court had to consider two key legal questions which will have ramifications well beyond that Germany and the case of Abdul Hannan and his deceased children:

  1. Does the European Convention on Human Rights apply to armed forces during their operations outside of their respective national borders?
  2. If the ECHR does apply, did the German government’s failure to properly investigate the 2009 airstrike violate its obligations under the Convention and the rights of Abdul Hanan?

The human rights court came to the conclusion that the military operations in Afghanistan did not establish a jurisdictional link capable of triggering the procedural obligation under Article 2 [right to life]”, although they fell short of making a decision as to whether the Convention might have applied in different circumstances.

Notwithstanding that decision, the ECtHR still evaluated the German investigation into the matter, finding that prosecutors didn’t violate the rights of Abdul Hanan. The Court concluded that “the investigation into the deaths of the applicant’s two sons which was performed by the German authorities complied with the requirements of an effective investigation under Article 2 of the Convention”.

“The Federal Prosecutor General’s determination that Colonel K. had not incurred criminal liability was primarily based on the finding in respect of Colonel K.’s mens rea at the time of ordering the airstrike, which was corroborated by evidence which could not be tampered with, such as audio recordings of the radio traffic between the command centre and the pilots of the American F-15 aircraft and the thermal images from the latter’s infrared cameras, which had been immediately secured”, the Court determined.

Although the German military estimate that 91 people were killed and 11 were injured, when pressed on the matter by the German Left Party, the government said that it hadn’t confirmed exactly how many victims there were from the airstrike.

The North Atlantic Treaty Organization led the military mission in Afghanistan, known as the International Security Assistance Force (ISAF), from 2001 until the latter came to an end in 2014. ISAF was then replaced by the Resolute Support Mission, which continues to operate in Afghanistan to this day. In 2019, a UN report concluded that the NATO-led mission in Afghanistan was responsible for more civilian deaths than the insurgency which opposes the NATO-led occupation force.