TrustHLT/LaCour huggingface dataset:
Linos-Alexandre Sicilianos (JudgeP): It was allocated to the fifth section of the court, pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Linos-Alexandre Sicilianos (JudgeP): It was then communicated to the government on 2nd of September, 2016.
Linos-Alexandre Sicilianos (JudgeP): On 27 August, 2019, a chamber of the fifth section decided to relinquish jurisdiction in favor of the grand chamber.
Linos-Alexandre Sicilianos (JudgeP): The governments of Denmark, France, Norway, Sweden, and the United Kingdom, the Human Rights Center of the University of Essex, the Institute of International Studies of the Università Cattolica el Sacro Cuore di Milano, the Open Society Justice Initiative, and Rights Watch were all granted leave under Article 36, Paragraph 2 of the Convention, and Rule 44, Paragraph 3 of the Rules of Court to make written submissions to the court as third parties.
Linos-Alexandre Sicilianos (JudgeP): The governments of France and the United Kingdom, as well as Rights Watch UK, were also granted leave to take part in the hearing and to make oral submissions.
Linos-Alexandre Sicilianos (JudgeP): The respondent governments are represented by their agents, Mrs. Almut Wittling-Vogel and Mr. Nicola
Linos-Alexandre Sicilianos (JudgeP): Wenzel of the Federal Ministry of Justice and Consumer Protection, assisted by Professor Heike Krieger, counsel, and my Mrs. Sarah Weinkauff, Mr. Stefan Sohm,
Linos-Alexandre Sicilianos (JudgeP): Mrs. Mareike Wittenberg, Mrs. Jeannine  Drohla,
Linos-Alexandre Sicilianos (JudgeP): Mr. Christian Ritscher, Mrs. Duscha Gmel, Mrs. Sonja Heine,
Linos-Alexandre Sicilianos (JudgeP): and Mr. Christoph Barth, advisors.
Linos-Alexandre Sicilianos (JudgeP): The applicant is represented by Mr. Wolfgang Kaleck
Linos-Alexandre Sicilianos (JudgeP): and Professor Dapo Akande, counsel, assisted by Professor Florian Jessberger, Professor Chantal Meloni, Mr. Andreas Schüller, and Mrs. Iaroslavna
Linos-Alexandre Sicilianos (JudgeP): Sychenkova, advisors.
Linos-Alexandre Sicilianos (JudgeP): Le gouvernement français qui est intervenant est represente par Mr. François
Linos-Alexandre Sicilianos (JudgeP): Alabrune, agent de gouvernement, assisste par Mme Eglantine Leblond, Mr. Rudolf Stamminger,
Linos-Alexandre Sicilianos (JudgeP): et Mr. Etienne Gouin, conseillers.
Linos-Alexandre Sicilianos (JudgeP): The British government, third party intervener, is represented by Mr. Chanaka Wickremasinghe, government agent,
Linos-Alexandre Sicilianos (JudgeP): and Sir James Eadie, QC, counsel, assisted by Mr. John Swords, advisor.
Linos-Alexandre Sicilianos (JudgeP): Rights Watch UK, third party intervener, is represented by Mr. Samuel Wordsworth, QC,
Linos-Alexandre Sicilianos (JudgeP): and Mr. Can Yeginsu, Kounsel, assisted by Mrs. Greta
Linos-Alexandre Sicilianos (JudgeP): Schumacher, advisor.
Linos-Alexandre Sicilianos (JudgeP): I welcome the representatives of the parties in the name of the court.
Linos-Alexandre Sicilianos (JudgeP): I also welcome a delegation of the French Conseil d'Etat.
Linos-Alexandre Sicilianos (JudgeP): Having consulted the agents of the government, the representatives of the applicant and of the third parties, I have determined the order of addresses as follows.
Linos-Alexandre Sicilianos (JudgeP): Mrs. Wittling-Vogel and Mrs. Krieger for the government
Linos-Alexandre Sicilianos (JudgeP): will speak first, followed by Mr. Kaleck and Mr.
Linos-Alexandre Sicilianos (JudgeP): Akande for the applicant.
Linos-Alexandre Sicilianos (JudgeP): And finally, Mr. Alabrune and Sir James Eadie,
Linos-Alexandre Sicilianos (JudgeP): followed by Mr. Wordsworth and Mr. Yeginsu,
Linos-Alexandre Sicilianos (JudgeP): will speak for the third parties.
Linos-Alexandre Sicilianos (JudgeP): I would explain that in addition to interpreting in the two official languages of the court, French and English, interpreting into Georgian has been authorized for the benefit of the group of judicial candidates from the Georgian School of Justice attending this hearing.
Linos-Alexandre Sicilianos (JudgeP): This interpretation is not part of the official interpretation of the proceedings as organized by the court.
Linos-Alexandre Sicilianos (JudgeP): Mrs. Wittling-Vogel.
GR1 (Government): these proceedings today are concerned with the matter of duties to investigate and possibilities of granting legal protection in the context of military action abroad, and thus with rather formal legal questions.
GR1 (Government): However, the government is aware that behind these legal issues, there is substantial human suffering and grief.
GR1 (Government): The following statement on the course of events and the measures taken is in no way intended to question or qualify the suffering the applicant and his family have experienced.
GR1 (Government): Before we address the legal issues, allow me on behalf of the Federal Republic of Germany to express our sincere regret for the civilian casualties of the airstrike.
GR1 (Government): Now, with your permission, Mr. President,
GR1 (Government): I will ask Professor Krieger to submit our legal assessment.
Linos-Alexandre Sicilianos (JudgeP): Professor Krieger, you have the floor.
GR2 (Government): Mr. President, distinguished members of the Court,
GR2 (Government): the applicant's complaint raises important legal issues regarding the interpretation of the European Convention on Human Rights.
GR2 (Government): It centers around the grounds and limits for the extraterritorial application of the convention and attribution in cases of military action authorized by the United Nations Security Council.
GR2 (Government): These questions require a decision in principle by this distinguished Court.
GR2 (Government): Member states need clear guidance on their convention responsibility for military action on foreign soil.
GR2 (Government): I will duly address these issues in my intervention.
GR2 (Government): But I will also invite you to look at the specific facts of the case, at the way Germany dealt with these tragic events in which the applicant's two sons were killed.
GR2 (Government): Irrespective of whether Germany was bound by the convention or not, one thing is clear.
GR2 (Government): The incident was thoroughly investigated.
GR2 (Government): The federal prosecutor general conducted an in-depth examination in order to determine whether the military personnel involved was criminal responsible.
GR2 (Government): A commission of inquiry of the German parliament examined the political and factual dimensions of these events for over 1 and 1⁄2 year.
GR2 (Government): Consulted files, questioned 41 witnesses, and eventually published a report.
GR2 (Government): Court proceedings on compensation are still pending.
GR2 (Government): In a nutshell, the German legal system responded comprehensively to the incident.
GR2 (Government): In my intervention, I will focus on three points.
GR2 (Government): First, I will address questions related to Article I of the convention and demonstrate that neither the airstrike nor the ensuing investigations established German jurisdiction.
GR2 (Government): Second, I will demonstrate that if the court wants to consider the merits of the case, it should conclude that Germany has complied with its obligation to investigate under the procedural limb of Article II.
GR2 (Government): And third, I will show that the applicant was entitled to legal remedies before German courts that are adequate and effective.
GR2 (Government): So let us look at the question of principle that arises in this case.
GR2 (Government): Does the European Convention on Human Rights oblige Germany to investigate an incident, even though it has taken place in Afghanistan in the context of military missions authorized by the United Nations Security Council?
GR2 (Government): The answer is no.
GR2 (Government): The convention does not apply in such a case.
GR2 (Government): There are two reasons.
GR2 (Government): One, the acts are not attributable to Germany because the airstrike was carried out on behalf of the United Nations.
GR2 (Government): The conclusion is based on this court's decision in the Birrami case.
GR2 (Government): The Birrami jurisprudence remains essential for delineating the relationship between the European Convention and the United Nations Charter.
GR2 (Government): It acknowledges the unique responsibility of the Security Council for the maintenance of international peace and security as a primary objective of the UN Charter.
GR2 (Government): And it preserves the fundamental role of the member states for the effective implementation of UN Security Council resolutions.
GR2 (Government): For this reasons, the measure taken are outside the jurisdiction of the court, Razione Persone.
GR2 (Government): No investigative duty under the convention can arise.
GR2 (Government): The second reason why the convention does not apply to the case before you is that the airstrike constituted an extraterritorial act, but not an exercise of extraterritorial jurisdiction in the meaning of Article 1.
GR2 (Government): The court has constantly held that the convention's extraterritorial application is exceptional and requires special justification in the specific circumstances of each case.
GR2 (Government): Article 1 reflects the ordinary, essentially territorial notion of jurisdiction.
GR2 (Government): In the Bankovic case, the court expressly stated that Article 1 should not be subject to dynamic interpretation.
GR2 (Government): The reasons for this are twofold.
GR2 (Government): First, the concept of jurisdiction is the threshold criterion for applying the entire convention system and thus for establishing a contracting state's responsibility.
GR2 (Government): However, states can only comply with their obligations where they assert sufficient physical control and legal authority to be able to fulfill their duties.
GR2 (Government): Therefore, the duty to secure to everyone the protection of the convention must depend on the existence of a clearly delineated jurisdictional link, a link that is territorial in most cases.
GR2 (Government): Secondly, the contracting parties have consented to this essentially territorial notion of jurisdiction and continue to do so.
GR2 (Government): From the outset, Article 1 was meant to guarantee that all persons physically present on the territory of the contracting states enjoy the convention's protection.
GR2 (Government): The contracting parties have continuously embraced this essentially territorial notion of jurisdiction, and the observations submitted by the governments of Denmark, France, Norway, Sweden, and the United Kingdom in the present proceedings reflect this ongoing consent.
GR2 (Government): Having said that, in the present case, no reasons whatsoever can be found to justify the extraterritorial application of the convention.
GR2 (Government): Germany did not exercise effective control over the Kunduz region.
GR2 (Government): In this respect, the circumstances of the Bankovic case are highly comparable to the present case because Bankovic also deals with the deaths of civilians caused by airstrikes of NATO forces outside the contracting state.
GR2 (Government): An airstrike is not sufficient to establish a state's control over a certain region.
GR2 (Government): Neither did Germany exercise effective control in any other respect.
GR2 (Government): In September 2009, German ISAF troops stationed in the Kunduz region were involved in the conduct of hostilities in an active combat zone which was under the control of the Taliban.
GR2 (Government): The number of Taliban in the region was nearly as high as the number of ISAF troops.
GR2 (Government): The ISAF soldiers had already been involved in heavy fighting, had suffered serious losses in these battles, and continued to risk being attacked whenever they left their camps.
GR2 (Government): I would like to provide only a few numbers in order to illustrate the situation.
GR2 (Government): During the three weeks prior to the airstrike, the regional command north had to face well over 80 attacks with firearms and explosive devices.
GR2 (Government): During the same period of time, 287 wounded and 27 dead persons have been documented in Afghanistan among ISAF personnel alone.
GR2 (Government): Moreover, Germany did not exercise jurisdiction based on the criterion of state agent authority and control.
GR2 (Government): The airstrike was not carried out for the purpose of asserting authority and control over persons.
GR2 (Government): Rather, the tankers were destroyed in order to prevent that they would be used for an attack against ISAF troops and Afghan institutions in particular, police stations.
GR2 (Government): Such incidents had occurred several times before.
GR2 (Government): In 2009 alone, there had already been five attacks with tankers or lorries with large explosive charge.
GR2 (Government): In the conduct of hostilities, the use of force to defeat the adversary is a legitimate aim in itself.
GR2 (Government): The applicable rules of international human rights in itself, the applicable rules of international humanitarian law distinguish such measures from situations where a state assumes a higher degree of control and some form of authority over enemy territory, enemy combatants, or the civilian population.
GR2 (Government): In situations of military occupation or detention, armed forces do assert authority with the aim of upholding and imposing public order and security.
GR2 (Government): And the cases of Al-Skaini and Jalut decided by this court are perfect examples.
GR2 (Government): But the case before you now is entirely different because it concerns measures in the conduct of active hostilities.
GR2 (Government): The airstrike is a means and method of warfare.
GR2 (Government): It is not an assertion of authority to impose public order.
GR2 (Government): This distinction is inherent in international humanitarian law and should guide the court in its interpretation of the expression within their jurisdiction.
GR2 (Government): Therefore, the Kunduz region was not under the jurisdiction of Germany, according to Article 1 of the convention.
GR2 (Government): Finally, the jurisdiction of the court cannot be based on the Gürtel-Yurtlu judgment either.
GR2 (Government): The Gürtel-Yurtlu judgment must be seen as exceptional and strictly limited to the circumstances of the specific case.
GR2 (Government): It does not provide a basis for the establishment of jurisdiction in the present case for the following three reasons.
GR2 (Government): First, the rationale of the Gürtel-Yurtlu case aims to prevent a vacuum in the system of human rights protection between two contracting states within the legal space of the convention.
GR2 (Government): This rationality is closely tied to the special nature of the convention as a treaty for the collective enforcement of human rights and fundamental freedoms.
GR2 (Government): The emphasis on the collective character of the convention obligations creates a shared responsibility of the contracting states in order to assure that each of them can fulfill their obligations.
GR2 (Government): No state shall be prevented from pursuing its own criminal proceedings just because another convention state refuses to cooperate.
GR2 (Government): In the light of this rationality, establishing a jurisdictional link on the institution of investigations is limited to cases where contracting states have to assume their respective responsibility for the collective enforcement of the convention within its legal space.
GR2 (Government): German investigations in relation to the Kunduz airstrike do not fall within the rationality of jurisprudence.
GR2 (Government): Neither a vacuum in human rights protection between two contracting parties nor mutual obligations of cooperation are at stake.
GR2 (Government): Second, the Gürtel-Yurtlu case has to be distinguished from the present case because the special features that exceptionally trigger a jurisdictional link in the Gürtel-Yurtlu judgment do not exist in the present case.
GR2 (Government): In Gürtel-Yurtlu, the court established the jurisdictional link on the ground that it had already found that northern Cyprus is under the effective control of Turkey for the purposes of the convention.
GR2 (Government): However, Germany did not exercise effective control over the Kunduz region, as I have already explained.
GR2 (Government): Third, the Gürtel-Yurtlu jurisprudence is limited to investigative measures which the contracting state can take within its territory or otherwise within its jurisdiction.
GR2 (Government): Under this jurisprudence, the court has only established an obligation to investigate whether the contracting parties were factually and legally able to comply with this duty because they exercised authority and were in a jurisdictional duty because they exercised authority and physical control.
GR2 (Government): In Gürtel-Yurtlu, Turkey was under an obligation to examine and provide a reasoned reply to an extradition request from Cyprus.
GR2 (Government): Such a duty does not call for any act to be performed outside Turkey's jurisdictional control.
GR2 (Government): However, in the present case, the essence of the applicant's objections concern investigatory measures to be taken outside German territory and otherwise outside its jurisdiction in a Taliban stronghold subject to ongoing combat operations.
GR2 (Government): In sum, neither the Gürtel-Yurtlu jurisprudence nor the longstanding puritan and case law of this court concerning Article 1 of the convention cover situations as the one in the present case.
GR2 (Government): The European Convention on Human Rights therefore does not oblige Germany to investigate the incidents in Kunduz.
GR2 (Government): However, this does not mean that there is no duty to investigate for Germany at all.
GR2 (Government): The fact that the convention is not applicable does not entail a legal vacuum.
GR2 (Government): There is no accountability gap in the protection of the civilian population in military missions on foreign soil.
GR2 (Government): On the contrary, Germany is already required by international humanitarian law and national criminal law to examine the death of civilians during the conduct of hostilities.
GR2 (Government): There is no need to expand the territorial reach of the convention.
GR2 (Government): Mr. President, distinguished members of the court,
GR2 (Government): I have explained why the convention does not apply to the events in Kunduz.
GR2 (Government): But I want to be very clear.
GR2 (Government): Even if the convention did apply, Article 2 would not be violated.
GR2 (Government): As we have demonstrated in our written observations, parts of the applicant's argument with respect to Article 2 are already inadmissible because the local remedies were not exhausted.
GR2 (Government): This is true in particular with respect to the alleged lack of independence of the federal prosecutor general.
GR2 (Government): I will not delve into this issue again here.
GR2 (Government): I will rather demonstrate that Germany has thoroughly investigated the incidents and have thus fulfilled the requirements of Article 2.
GR2 (Government): I will first turn to the situation in Afghanistan.
GR2 (Government): For defining the standard of what reasonable steps were required in Afghanistan, the convention must be read in the light of the more specialized rules of international humanitarian law on the basis of the Hassan jurisprudence.
GR2 (Government): Moreover, on Afghan soil, Germany's legal powers and factual capacities to investigate were severely restricted.
GR2 (Government): First, investigations in Afghanistan did not lie in the power and competence of German authorities, but were entrusted to the Afghan civil government, ISAF, and UNAMA.
GR2 (Government): The German military police, which was present in Afghanistan, could only play a minor role in this setting.
GR2 (Government): Under the UN Security Council resolutions, the German military police was only allowed to carry out internal investigations.
GR2 (Government): This means that the military police was not allowed to summon Afghan witnesses.
GR2 (Government): Neither could they adopt investigative measures nor coercive measures in order to secure evidence.
GR2 (Government): The German civilian law enforcement authorities, which were competent to investigate this case, could not take an active part in the investigations in Afghanistan either.
GR2 (Government): Neither the status of force agreement with Afghanistan, nor the UN Security Council resolutions opened any possibility for civilian law enforcement agencies to pursue investigations on their own on Afghan territory.
GR2 (Government): These restrictions on Germany's legal powers to investigate in Afghanistan also add to the arguments I made earlier in relation to the Birami jurisprudence.
GR2 (Government): They demonstrate very clearly that the United Nations are the entity responsible, not Germany.
GR2 (Government): Second, investigations were affected because in the bomb release area, fightings were still going on.
GR2 (Government): The risk of attacks was omnipresent, as shown by an attack on the initial assessment team.
GR2 (Government): Finally, regardless of the difficulties of on-site investigations in this case, the circumstances in which the applicant's sons died were comprehensively revealed.
GR2 (Government): No doubt was left about the fact that a considerable number of civilians were among the victims.
GR2 (Government): The reasons for this application do not lie in factual doubts, but they lie in differing legal assessments of the events in Afghanistan.
GR2 (Government): Turning to the situation within Germany, it is clear that all facts were brought to light which were necessary to assess the potential criminal liability of the military personnel involved.
GR2 (Government): On this basis, the federal prosecutor general determined that the use of force was justified in the concrete circumstances of the case.
GR2 (Government): The higher regional court and the German constitutional court upheld this decision.
GR2 (Government): In the decision not to bring charges, the federal prosecutor general had to assess inter alia whether there were sufficient reasonable grounds to believe that the accused were criminally liable for violating the principle of proportionality in attacks.
GR2 (Government): They had to assess whether the accused had definitely anticipated that the attack would cause death to civilians in excess to the concrete and direct overall military advantage anticipated.
GR2 (Government): This reasoning had to be based on an ex ante assessment of the circumstances.
GR2 (Government): The ex ante situation was as follows.
GR2 (Government): The security situation in the region was characterized by steady increase of Taliban activity and by the demand of the local population to do something about the growing Taliban insurgency.
GR2 (Government): The river loop where the tanks got stuck was a hotspot of insurgent activities.
GR2 (Government): In assessing all evidence, the federal prosecutor general rightly reasoned that the accused had assumed that only insurgents were present at the site and the accused had not anticipated any civilian damage.
GR2 (Government): The intention was to hit the hijacked fuel tankers which got stuck on the sandbank in order to prevent that these tankers would be used for an attack against ISAF troops.
GR2 (Government): Similar attacks against ISAF troops had taken place before and ISAF had received a concrete warning about another pending attack.
GR2 (Government): In this context, the federal prosecutor general arrived at the conclusion that the accused had exhausted all precautionary measures that were feasible at the time and in the circumstances ruling at the time.
GR2 (Government): In particular, when ordering the airstrike, the accused had no reason to doubt the reliability of the information provided to them.
GR2 (Government): It had been confirmed to them at seven individual occasions that an informant had identified the persons at the tankers as insurgents.
GR2 (Government): The accused had been informed that there were no specific reasons to doubt the reliability of the information.