The European Court of Human Rights (ECHR) ruled Tuesday that Germany’s investigation into a 2009 airstrike on Kunduz, Afghanistan, was sufficiently conducted and did not violate the European Convention on Human Rights.
The German Federal Prosecutor General opened the investigation in 2010 when Afghan citizen Abdul Hanan filed a complaint after losing his two young sons to the attack, asserting that Germany did not fulfill its international legal obligation to investigate the incident sufficiently. The investigation revealed that German Colonel K. of the NATO-led International Security Assistance Force (ISAF) ordered the deadly airstrike on two fuel tankers that he believed to have been highjacked by Taliban insurgents. The airstrike killed an estimated 80 civilians.
The Federal Prosecutor found that Germany had “exclusive jurisdiction” over its troops deployed by ISAF and was required by international and domestic law to investigate serious crimes. To be found liable under the convention’s Article 2 “right to life” provision, the court would need to determine that Colonel K. acted with intent to cause “excessive civilian casualties.” In that case, the Prosecutor ruled, Colonel K. was not liable because he did not possess the required intent to harm civilians are damage property. Instead, the Prosecutor reasoned that the colonel had intended to target Taliban insurgents who were considered lawful military targets under international law.
On judicial review, the Federal Constitutional Court concluded that the investigation was sufficient because Hanan had exercised two judicial remedies to challenge the investigation decision. The court reiterated in its decision that Article 2 does not require judicial review of investigative decisions and that there was no evidence suggesting that Colonel K. intended to harm civilians.
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