TrustHLT/LaCour huggingface dataset:
Linos-Alexandre Sicilianos (JudgeP): So I understand, as Judge Spano does, that the complaint is essentially linked to the duty to investigate, namely the procedural obligation under Article 2 of the Convention, plus, of course, Article 13, which concerns the issue of an effective remedy, namely the procedure.
Linos-Alexandre Sicilianos (JudgeP): I would like to have a confirmation from the applicant in this respect.
Linos-Alexandre Sicilianos (JudgeP): Secondly, I would like to also echo the question addressed by Vice President Spano to the government.
Linos-Alexandre Sicilianos (JudgeP): And I would like to address it to both parties, namely that the staff and supporting personnel will, under all circumstances and at all times, be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offenses which may be committed by them on the territory of Afghanistan.
Linos-Alexandre Sicilianos (JudgeP): What is the precise meaning and what is the relevance of this provision for our purposes, for purposes of Article 1 of the Convention?
Linos-Alexandre Sicilianos (JudgeP): And finally, a question to the government, echoing what Judge Lemmens has just said.
Linos-Alexandre Sicilianos (JudgeP): The applicants have mentioned a series of alleged flaws in the investigation.
Linos-Alexandre Sicilianos (JudgeP): For instance, they say that the German authorities failed to scrutinize Colin and Klein's perspective and its reasonableness.
Linos-Alexandre Sicilianos (JudgeP): German prosecutors never challenged the version of events provided by the suspects through independent experts or witness testimony.
Linos-Alexandre Sicilianos (JudgeP): They say also that the inclusion of independent military experts would be crucial.
Linos-Alexandre Sicilianos (JudgeP): And they say also that the authorities never clarified what the terms insurgent or Taliban meant, as they are vague, broad terms that do not define legitimate military targets under IHL.
Linos-Alexandre Sicilianos (JudgeP): So they have mentioned a series of specific flaws, according to them, in the investigation process.
Linos-Alexandre Sicilianos (JudgeP): Could we have a comment on those specific aspects by the government, please?
Linos-Alexandre Sicilianos (JudgeP): So thank you very much.
Linos-Alexandre Sicilianos (JudgeP): Judge Turković.
Ksenija Turković (Judge): Just a short one on the jurisdiction.
Ksenija Turković (Judge): Could we say that the jurisdiction of Germany could derive not only from the national law, not only from the agreement that has been mentioned, but as well from the ICC statute Article 12, I think it's paragraph 2B or 1B.
Ksenija Turković (Judge): Could you comment on that? Thank you
Linos-Alexandre Sicilianos (JudgeP): Professor Krieger.
Linos-Alexandre Sicilianos (JudgeP): Yes, please, you have the floor.
GR2 (Government): Mr. President, Honorable Members of the Court, let me first address an issue raised by the
GR2 (Government): applicant and then turn to the questions of the Court.
GR2 (Government): The applicant alleges a lack of independence of the prosecutorial decisions taken in this proceedings because he claims the Federal Ministry of Defense would have interfered in the process.
GR2 (Government): I want to be very clear that this allegation is misleading in many ways.
GR2 (Government): To begin with, however, I would like to point out that the applicant never raised this issue at the national level and the applicant's complaint insofar is already inadmissible.
GR2 (Government): But I also want to be very clear that no instructions whatsoever were issued in this case and this has been confirmed by the Parliamentary Committee of Inquiry.
GR2 (Government): One must be aware that it is foreseen under national law that the Federal Prosecutor General is competent to examine violations of international humanitarian law and that this is reasonable because a legal system needs one institution that has the capacity and the expertise for these particularly complex kinds of cases and that's why the competence is focused with the Federal Prosecutor General.
GR2 (Government): And there are no legal ways for the Ministry of Defense to instruct the Federal Prosecutor General in whatever manner.
GR2 (Government): Let me now turn to the questions of the judges and I would like to address first the question by Judge Spano.
GR2 (Government): Do we have special features in the present case in light of Götz Lüttlo because we have Article 3 of the Status of Force Agreements?
GR2 (Government): We hold that the Article 3 of the Status of Force Agreements is not a special feature of this type.
GR2 (Government): First of all, it is a rule on immunity.
GR2 (Government): It excludes soldiers of multinational missions from the immunity of the host state.
GR2 (Government): It does not grant any competences towards Afghan population or on Afghan ground to conduct any investigations.
GR2 (Government): And thirdly, a comparable rule as Article 3 has also been included in the pertinent NATO legislation in the Birami case and did not give rise to doubts.
GR2 (Government): On a more principled matter, I think it is important to make clear here that there is an argument around which claims that on the basis of provisions such as Article 3, there should be an attribution to the member states and not to the United Nations.
GR2 (Government): However I think that this argument has somehow overlooked that these are only competences and investigatory powers in the internal relationship between the soldier concerned and his or her estate.
GR2 (Government): I think this case makes very clear that there is an additional limit for the contracting parties to investigate in these cases where they don't have external investigatory powers as it is the case here.
GR2 (Government): If the UN Security Council resolutions and the pertinent status of force agreements don't grant investigatory powers, coercive powers, possibilities to summon witnesses in such cases, then there is no basis for attribution and there is no factual and legal basis for establishing jurisdiction in this respect and I think the court should consider this aspect.
GR2 (Government): In relation to the question of Judge Keller on which reports have been considered in the proceedings, I would like to point out that the Federal Prosecutor General in the decision to not bring public charges started the considerations with a long list of all the reports available and you find this on page 3 of the decision of the Federal Prosecutor General.
GR2 (Government): The Federal Prosecutor General got hold of all reports available in relation to the incident, in particular reports from the Afghan official authorities, and it took them into account on a factual basis, it obtained them, and it was eager to obtain them, and on the other hand it also evaluated the evidence presented in these reports in the overall assessment of the case.
GR2 (Government): In relation to the question of Judge Zybart V on the obligations arising from international humanitarian law, I would like to first point out that under Article 1 of the Geneva Conventions and in light of the grave breacher's regime, there is a duty to investigate incumbent upon the member states of the Geneva Conventions.
GR2 (Government): We submit that in the present case on the basis of the Hassan jurisprudence, the court should take into account the provisions of the pertinent international humanitarian law rules and what they give as standards for conducting in such situations, and I would like to particularly point out the role of the military commander, but also a number of procedural aspects to which we have referred in our written observations in paragraph 119.
GR2 (Government): And we finally submit here that it is important for the court to take into account on the basis of these IHL rules the specific conditions under which investigations are conducted within an armed conflict which has implications on the form of investigations, on the reasonable expedience and these criteria.
GR2 (Government): Addressing the question of Judge Lemers, I would like to point out that you find the pertinent legal considerations made by the Federal Prosecutor General in the decision not to bring public charges on page 42 and following.
GR2 (Government): Let me roughly summarize the legal situation.
GR2 (Government): If there is no criminal responsibility under the Code Act against crimes against international law, then there is still the possibility that there might be a criminal responsibility under general criminal law, either in relation to murder or in relation to negligent killings.
GR2 (Government): You have referred to objective standards.
GR2 (Government): In evaluating whether there might be a case of negligency here, the Federal Prosecutor General took into account and assessed the question whether the accused had taken all feasible precautions and whether they had complied with the prohibition of excess in military attacks because these are possible justifications under German criminal law.
GR2 (Government): And in relation to the question by Judge Zizianos, the President, I would like to point out that the German authorities have conducted thorough investigations and I would like to give some examples in reference to what the applicant had said.
GR2 (Government): Let me take the example of the credibility of the accused.
GR2 (Government): The Federal Prosecutor General addressed these issues on page 23 to 29 of the prosecutorial decision, and it made a reasonable argumentation checking the witness accounts against reports and other available information in order to derive at an overall assessment that the statements of Colonel Klein have been credible.
GR2 (Government): In relation to the question whether there were Taliban insurgents or not and how to legally qualify and factually qualify persons present, let me also point to the fact that the Federal Prosecutor General in length on the one hand evaluated and checked the factual grounds of the situation in Afghanistan.
GR2 (Government): You find considerations on this on pages 6 to 10 of the Federal Prosecutor's decision.
GR2 (Government): It engaged with scientific reports and scientific papers on the situation in Afghanistan and evaluated the structure of Taliban, and then there is another part in which the Federal Prosecutor General intensively deals with the issue of participation, direct participation in hostilities by civilians in order to determine criteria for the status of the persons involved in the happenings on the sand bank.
GR2 (Government): Finally, there is the claim that there were no independent military experts consulted.
GR2 (Government): In this respect, I would like to refer you to the fact that ISAF conducted an in-depth investigation of the incident and that this ISAF group was composed of members from multinational backgrounds, all of them military experts, knowing about the situation on the ground and possessing the specific military expertise for evaluating the situation.
GR2 (Government): There was no German person in that investigatory body that would somehow have been implicated in the events, and the ISAF report formed the basis for the Federal Prosecutor General in the evaluation of the facts and the evidence.
GR2 (Government): Finally let me address the question by Judge Turkovich on Article 12 of the ICC statute.
GR2 (Government): We hope that Article 12 of the ICC statute is a basis for the jurisdiction of the International Criminal Court, but it is not about the jurisdiction of the European Court of Human Rights, and it does also not create jurisdiction of Germany under this convention.
GR2 (Government): But it confirms that under the Rome statute, Germany has an obligation to investigate also in view of Article 17 of the ICC statute.
GR2 (Government): That is the basis for our Criminal Code against acts against international law, and this is the basis for the Federal Prosecutor General to act.
GR2 (Government): And it also stresses our point that there is no legal vacuum should the European Convention on Human Rights not be extended to the situation in Afghanistan, because Germany is still obliged also under international criminal law to investigate into situations and events like the one in Kunduz.
GR2 (Government): So there is no need to extend the protection of the convention in this respect.
Linos-Alexandre Sicilianos (JudgeP): I call the applicant, Mr. Kaleck.
AP2 (Applicant): Mr. President, we can confirm that the Vice President's assumption that we only challenge
AP2 (Applicant): the conduct here today in court is right and that we addressed articles 2 and 13's violation referring to the procedure.
AP2 (Applicant): Clarifying, answering the questions of Judges Keller, Lemons, and Seibert IV, who were interrelated, what specific investigative measures Germany could have done.
AP2 (Applicant): You find here a crew of very experienced international lawyers who had experienced Germany's capacities of investigative measures in investigating extraterritorial facts, for example in terrorism cases but also in international crime cases.
AP2 (Applicant): One of our recent cases deals with one of the most heated armed conflicts on earth right now, Syria, where the Federal Prosecutor's Office is carrying out a very sorrowful investigation into President Assad's torture regime by conducting witness testimonies in Germany, outside of Germany, in third countries.
AP2 (Applicant): And here it would have been easily possible to use technology, modern technology, or bring witnesses to Germany, what also happened in other similar cases.
AP2 (Applicant): It's an everyday procedure in German criminal law and even the Inquiry Commission did bring – later on, the Parliamentary Inquiry Commission brought more witnesses to Germany than were heard by the Federal Prosecutor's Office during the formal criminal proceeding.
AP2 (Applicant): Judge Keller's question, did you consider the results of other fact-finding institutions?
AP2 (Applicant): So we have one problem, that we only got partly access to the file, so we had no access to the ISAF report.
AP2 (Applicant): Second remark in this regard, from our point of view, the results were used only in a very selective and restricted way, only to confirm the subjective perspective of Colonel Klein and the other suspects.
AP2 (Applicant): And especially the number of victims should have been established because the different fact-finding institutions came to different results regarding the number of civilian victims.
AP2 (Applicant): And here is, of course, our question, why didn't you take more time for the formal criminal proceeding?
AP2 (Applicant): It took only four weeks for you to close the file.
AP2 (Applicant): Within the four weeks, you heard the two suspects and two witnesses from the military.
AP2 (Applicant): Months later, you confirmed that our client, Abdul Bayan, was not 20-year-old and was not an armed Taliban, but a 12-year-old boy.
AP2 (Applicant): And then you granted him access, partly access to the file and so on.
AP2 (Applicant): Months later, you paid 93 victims ex gratia payments because you considered that they had right claims.
AP2 (Applicant): Why didn't that take place?
AP2 (Applicant): These kind of analysis should have taken place within the formal criminal proceeding, and it didn't take place due to the political pressure, which obviously we see.
AP2 (Applicant): Judge Seibert's four questions regarding the applicants and the villagers.
AP2 (Applicant): First of all, we were deprived to exercise the procedural rights on behalf of the applicant and of others because we were denied access to the file and the right to be heard.
AP2 (Applicant): And second, we consider this kind of investigation as a mosaic.
AP2 (Applicant): You know, you have to collect bits and pieces.
AP2 (Applicant): And these were people who were all present at the crime scene or close to the crime scene.
AP2 (Applicant): And they could have contributed to the very important question, how many members of, let's say, armed Taliban fighters were on the spot, and how many civilians?
AP2 (Applicant): And that leads me to the question Judge Lemons raised about the different standards of the Code Against International Crime, war crimes, and the, let's say, ordinary criminal law.
AP2 (Applicant): We did never say that Colonel Klein committed a war crime because we saw at the very beginning this is, and we agree with Professor Grigor, it's an ex ante analysis, and we saw that he was lacking the specific intention.
AP2 (Applicant): But we always said from the very beginning that the ordinary criminal law is applicable.
AP2 (Applicant): Manslaughter and negligent manslaughter.
AP2 (Applicant): And especially within an analysis, legal analysis of negligent manslaughter, it would have been key to investigate and to determine the precautionary measures and proportionality.
AP2 (Applicant): And the second aspect of this discussion is Professor Yesberger delivered a legal opinion while during the proceeding that the Karlsruhe Federal Prosecutor's Office was not competent to decide this, but the case should have been delivered to an ordinary prosecutor's office, which was not the case.
AP2 (Applicant): Two minor remarks.
AP2 (Applicant): The UK government raised the question, the commander must be responsible for the investigation if no other authority is in place.
AP2 (Applicant): Here there was another authority in place.
AP2 (Applicant): It was even worse.
AP2 (Applicant): Colonel Klein was held responsible for not consulting his superior in Masar Sharif.
AP2 (Applicant): And if the battle damage assessment team could have arrived a couple of hours later, why didn't they involve the superior of the battle assessment damage team who was sitting at the same Masar Sharif?
AP2 (Applicant): And sorry for a misunderstanding, Professor Krieger, we never said that the Minister of Justice did intervene.
AP2 (Applicant): We said that the Minister of Defense.
AP2 (Applicant): And we leave it to the Court to assess whether the referred parts and translated parts of the inquiry commission, page 354 and 355, constitute an intervention and a breach or not.
AP2 (Applicant): So I hand over to my colleague, Akande, for the other questions.
Linos-Alexandre Sicilianos (JudgeP): Professor Akande, you have the floor.
AP1 (Applicant): With your permission, I will respond to questions put by President Sicilianus, Vice President Spano, the question by Judge Subedfor about the relevance of IHL, and finally, the question by Judge Turkovich about the ICC statute.
AP1 (Applicant): So to start with the question by the President and the Vice President about the significance of Article III of the Status of Forces Agreement, that question relates to this issue of attribution.
AP1 (Applicant): And so the issue is to whom are the investigative acts to be attributed?
AP1 (Applicant): So are the acts of investigation to be attributed to Germany, as we say, or to be attributed to the UN, as the government says?
AP1 (Applicant): And there are two.
AP1 (Applicant): It's important to remember that you have two sets of acts of investigation that occur.
AP1 (Applicant): You have the acts of German agents acting in Germany to investigate.
AP1 (Applicant): So for example, the public prosecutors' investigative acts.
AP1 (Applicant): Clearly, and I think this is not disputed by the government, those acts of the German state authorities in Germany are not authorized by the UN under the ISAF Resolution 1386.
AP1 (Applicant): So clearly, those acts of investigation must be attributable to Germany.
AP1 (Applicant): And secondly, you have the acts of German forces in Afghanistan.
AP1 (Applicant): The question there is, are those acts of investigation, not the airstrike now, the acts of investigation, are they covered by Article III of the ISAF Status of Forces Agreement?
AP1 (Applicant): So we don't share the view of Professor Krieger that this is a rule of immunity.
AP1 (Applicant): Indeed, Article III is quite clear that this is a rule relating to jurisdiction.
AP1 (Applicant): It is a rule by which the troop contributing nations explicitly retain their exclusive jurisdiction with respect to investigative acts.
AP1 (Applicant): They retain that exclusive jurisdiction vis-a-vis Afghanistan.
AP1 (Applicant): They retain that exclusive jurisdiction vis-a-vis ISAF.
AP1 (Applicant): And they retain that exclusive jurisdiction vis-a-vis the UN.
AP1 (Applicant): And so in our submissions, that supports the argument that those investigative acts are to be attributed to Germany.
AP1 (Applicant): Secondly, Vice President Spano invites us to look at possible distinctions between the multinational force in Iraq and the ISAF force in Afghanistan.
AP1 (Applicant): And he invited us to respond to the submissions of the German government in their written submissions, paragraphs 42 to 43.
AP1 (Applicant): And in particular, the argument that was made that in Afghanistan, it was the Afghan government that had responsibility for security.
AP1 (Applicant): However, if we look at the UN Security Council resolution that provides authorization for ISAF to act in Afghanistan, Article I of that Security Council resolution is quite clear.
AP1 (Applicant): ISAF's mandate is to assist the government of Afghanistan to maintain security and also to ensure a secure environment in Afghanistan.
AP1 (Applicant): So that resolution is clear that ISAF also has, in fact, that is its mandate to maintain security.
AP1 (Applicant): And ISAF is there also at the invitation of the Afghan government to assist the Afghan government.
AP1 (Applicant): There's the argument that Iraq was a case of occupation and Afghanistan was not, which is true.
AP1 (Applicant): But the jurisprudence of the court is clear that occupation is not required.
AP1 (Applicant): All that is required is, in the words of an Afghani, an exercise of public powers, like the maintenance of security, or effective control of territory, which we maintain and we submit was the case here.
AP1 (Applicant): And I refer you to our written submissions, paragraphs 56 to 57.
AP1 (Applicant): Can I then turn to the question asked by Judge Siebert IV about the yardstick of IHL?
AP1 (Applicant): What are the relevant yardsticks of IHL?
AP1 (Applicant): And I have three points in relation to that question.
AP1 (Applicant): First of all, the relevance of IHL.
AP1 (Applicant): Secondly, the standards provided for in IHL for investigations.
AP1 (Applicant): And thirdly, the relationship between those IHL standards and the normal convention standards.
AP1 (Applicant): So the first point, the relevance of IHL.
AP1 (Applicant): It's been stated and clear that in Hassan, Article V was interpreted in the light of IHL.
AP1 (Applicant): However, it's by no means clear that this is also the case for Article II.
AP1 (Applicant): This is because Article XV-II specifically provides for derogations for deaths arising from lawful acts of war.
AP1 (Applicant): Lawful there being, of course, under IHL.
AP1 (Applicant): And if lawfulness is already taken into account under Article II, then that renders that provision of Article XV-II superfluous.
AP1 (Applicant): Indeed, the effect would be to delete those words from Article XV-II.
AP1 (Applicant): So if IHL is to apply, Article XV-II suggests that it will be in relation to Article II, it will be by derogation.
AP1 (Applicant): And the judge notes that there's no derogation in that case.
AP1 (Applicant): But secondly, even if IHL does apply, what are the standards that IHL provides for investigation?
AP1 (Applicant): We note that the German government acknowledges that there's an IHL obligation to investigate.
AP1 (Applicant): However, the UK government then submits that in effect, those IHL rules or obligations are extremely minimal.
AP1 (Applicant): If the UK is right, then the German government's point that there is no accountability gap, no legal vacuum, cannot be right.
AP1 (Applicant): So what then are the standards?