TrustHLT/LaCour huggingface dataset:
GR2 (Government): Moreover, they used images provided by infrared cameras from American aircraft on which the persons next to the tankers were visible as dots of a heat source.
GR2 (Government): Persons were moving between the surrounding villages and the sandbank, and this was consistent with the statements of the informant that the Taliban commanders had called up additional insurgents.
GR2 (Government): No specific indication that civilians were present followed from that information.
GR2 (Government): It was after midnight, and the number of people present did not give rise to doubts, since Taliban were easily capable to assemble even 100 persons in a short time.
GR2 (Government): In sum, for determining the criminal responsibility of the military personnel involved, sufficient evidence was available, and there was no need for further investigations.
GR2 (Government): Eventually, the essence of the application is not concerned with the effectiveness of these investigations.
GR2 (Government): It does not aim at a more in-depth clarification of the relevant facts.
GR2 (Government): Rather, the application aims to question the legal assessment that the accused has not incurred criminal liability.
GR2 (Government): However, Article 2 of the Convention does not cover the review of the legal correctness of prosecutorial decisions.
GR2 (Government): The contracting parties must ensure an adequate response by judicial and other means in order to protect the right of life, and Germany has done so.
GR2 (Government): But the duty to investigate is an obligation of conduct and not of result, and this means that it does not guarantee a certain outcome.
GR2 (Government): In the words of this court, Article 2 does not entail the right to have third parties prosecuted or convicted for a criminal offense.
GR2 (Government): finally, I will show that Germany has complied with its obligation to provide the applicant with an effective domestic remedy for his complaint under Article 2 and Article 13 of the Convention.
GR2 (Government): The applicant had effective judicial remedies at his disposal in the form of his petition to compel public charges before a higher regional court and his constitutional complaint before the German Constitutional Court.
GR2 (Government): That these two remedies fulfill the Convention's requirements has been acknowledged by this court in the case of Henschel and Stark.
GR2 (Government): By filing a petition to compel public charges, the applicant could have achieved a review of the prosecutorial decision.
GR2 (Government): Eventually, he did not achieve such a review because his lawyer had filed a petition that was inadmissible.
GR2 (Government): The higher regional court expressly noted that formal deficiencies in the reasoning prevented the court from reviewing the question as to whether the applicant's motion to perform further investigations was to be allowed.
GR2 (Government): The admissibility requirements were not excessive, particularly in view of the fact that the applicant was represented by a lawyer.
GR2 (Government): In cases to compel public charges, the higher regional court must decide whether there is sufficient evidence of an offense and whether charges ought to be brought.
GR2 (Government): To enable the court to take such a decision, the petition must indicate the evidence for the offense and the facts which substantiate the public charges.
GR2 (Government): This formal requirement is meant to guarantee that the court is able to take a decision without the need for an in-depth study of the files or annexes.
GR2 (Government): The factual content of the petition in itself must be sufficient to enable the court to come to a decision.
GR2 (Government): In this way, the law intends to enable an expeditious review of the petition while protecting the accused against unsubstantiated frivolous petitions.
GR2 (Government): This purpose can only be achieved if the evidentiary basis for criminal liability is readily apparent from the petition itself.
GR2 (Government): Moreover, the applicant's constitutional complaint was another effective legal remedy.
GR2 (Government): There is no indication whatsoever that a constitutional complaint of this type would have been unlikely to succeed from the very outset because of particularly strict admissibility criteria or substantive standards.
GR2 (Government): The Federal Constitutional Court examines constitutional complaints arising from proceedings to compel public charges with great scrutiny.
GR2 (Government): In the present case, it refused to accept the applicant's constitutional complaint because the court regarded it to be ill-founded in any case.
GR2 (Government): In its reasoning, the Constitutional Court expressly emphasized that the decision not to bring charges was in line with the standards established by the case law of the European Court of Human Rights regarding investigations of killings by state officials.
GR2 (Government): In so doing, it sufficiently addressed the pleas raised in the constitutional complaint.
GR2 (Government): It considered to an insufficient extent whether or not the federal prosecutor general ought to have examined witnesses who had observed the incident and ought to have taken further evidence.
GR2 (Government): The Constitutional Court rightly took the view that investigations concerning the number and identity of the victims of the airstrike would have served no purpose and were superfluous because they did not concern any aspects relevant for the assessment of criminal liability.
GR2 (Government): Thus, the review provided by the German Constitutional Court was sufficient to comply with the demands of Article 2 and 13 of the convention.
GR2 (Government): the loss of two children is an unbearable tragedy for their parents, which causes grief and pain.
GR2 (Government): And I can only express my deepest sympathy for the applicant's loss.
GR2 (Government): Germany was always aware of the seriousness of the tragic events in Kunduz.
GR2 (Government): Therefore, German authorities did everything within their power to bring all relevant facts to light in independent and effective investigations.
GR2 (Government): Still, on the basis of these facts, the criminal liability of the military personnel involved could not be established in thorough judicial proceedings.
GR2 (Government): It is understandable that this may cause frustration for the applicant as well as for the wider public.
GR2 (Government): But it does not impair the fact that Germany has submitted the present case to the careful scrutiny required by Article 2 of the convention.
GR2 (Government): We therefore ask the court to reject the application.
Linos-Alexandre Sicilianos (JudgeP): I now call the applicants.
Linos-Alexandre Sicilianos (JudgeP): Mr. Kaleck, you have the floor.
AP2 (Applicant): Mr. President, Honorable Judges, on September 4, 2009, an airstrike near Kunduz in Afghanistan
AP2 (Applicant): killed the children of my client, Mr. Abdul Hanan, and many civilians.
AP2 (Applicant): Abdul Bayan and Nezar Ullah were only 8 and 12 years old.
AP2 (Applicant): The strike was ordered by the German Colonel Klein at the German Army base.
AP2 (Applicant): From there, Colonel Klein was watching two fuel trucks that had been stuck while crossing the Kunduz River, and the large crowd gathered around the trucks.
AP2 (Applicant): The day before, a Taliban commando had seized the trucks.
AP2 (Applicant): During their slow drive through the province, which lasted several hours, they did not target the nearby German camp.
AP2 (Applicant): Still, half a day later, Colonel Klein declared it an imminent threat and requested ice of aircraft, which then dropped two 500-pound bombs.
AP2 (Applicant): Since that fatal night, Abdul Hanan has been struggling to get justice.
AP2 (Applicant): When he wanted Germany to recognize his procedural rights as a father, German officials blocked him and called him and his children Taliban.
AP2 (Applicant): Without an effective investigation, without any desire to establish the full truth, the criminal proceeding was closed.
AP2 (Applicant): We have been challenging this decision for 10 years now.
AP2 (Applicant): As we will show, Germany could have and should have taken specific measures to comply with its obligations under Articles 2 and 13 of the Convention, even in the difficult security conditions of Afghanistan at the time.
AP2 (Applicant): We will first show the admissibility of the case by addressing the exhaustion of remedies, and then, through my colleague Professor Akande, the parts of attribution and jurisdiction.
AP2 (Applicant): Afterwards, I will continue with the merits of the case.
AP2 (Applicant): The government argues, also today, that we did not exhaust all domestic remedies in Germany.
AP2 (Applicant): This is not true.
AP2 (Applicant): This Court held in Henschel and Stark that violations of the Convention must be raised domestically at least in substance.
AP2 (Applicant): The applicant went far beyond that.
AP2 (Applicant): We invite the Court to refer to our submission of November 1, 2019.
AP2 (Applicant): We translated many pages of the applicant's claim for an effective investigation before the domestic courts, very specifically and in substance, by listing concrete flaws of the investigation.
AP2 (Applicant): The applicant extensively referred to the case law of this Court, in particular concerning the State's obligation under Article 2 to carry out prompt, complete, and independent investigations.
AP2 (Applicant): My client argued that the investigations were ineffective because, inter alia, a number of relevant witnesses were not heard, the assumptions of the German colonel that led to the strike were not challenged, independent military experts were not heard, and the causes of the death of the applicant's son and the other estimated 100 civilians were not established.
AP1 (Applicant): my primary task will be to deal with the argument that the victims and the facts fell within the jurisdiction of Germany, such that the state was bound to secure to them the right to life provided for in Article 2 of the Convention.
AP1 (Applicant): In order to establish the jurisdiction of Germany, I will first demonstrate that both the investigation and the airstrike that killed the applicant's children are attributable to Germany and not to the United Nations.
AP1 (Applicant): The acts of the German forces in Afghanistan and the conduct of the investigation are to be attributed to Germany for three reasons.
AP1 (Applicant): The first is that for the conduct of an organ of a state that is placed at the disposal of the UN to be attributable to that organization, the organization must exercise effective control over such conduct.
AP1 (Applicant): This test of effective control over the conduct is clearly set out in Article 7 of the International Law Commission's Articles on the Responsibility of International Organizations and was applied by this court in the Al-Jadda case.
AP1 (Applicant): As in Al-Jadda, the airstrike does not cease to be attributable to Germany, since German troops were not under the exclusive direction and control of the UN.
AP1 (Applicant): At no point was the UN involved in the exercise of effective control over the conduct of Colonel Klein.
AP1 (Applicant): Germany retained full command over its troops, which remained part of the German national chain of command.
AP1 (Applicant): Authority over the troops, including decisions about the use of force, likewise remained exclusively with German state agents.
AP1 (Applicant): The effective control of Germany over the airstrike is reflected in the sequence of binding orders Colonel Klein gave on that occasion.
AP1 (Applicant): Colonel Klein himself confirmed that no superiors from ISAF were involved in his decision-making process leading to the airstrike.
AP1 (Applicant): In determining whether acts of state forces are to be attributed to an international organization, what is decisive is the amount of control exercised over the particular conduct at issue.
AP1 (Applicant): This approach is consistent with that of this court in Al-Jadda, where the court examined which entity had authority and control over the decision to hold the applicant in internment.
AP1 (Applicant): Our second argument with regard to attribution is that even if the test for determining whether the conduct was attributable to the UN was to look for which entity had ultimate authority and control, as set out in the Barami and Saramati judgment, it was Germany and not the UN which had such control in the present scenario.
AP1 (Applicant): Indeed, the situation at hand cannot be compared to the facts underlying the Barami judgment.
AP1 (Applicant): The wording of the relevant Security Council resolutions in respect of Kosovo and Afghanistan differ when it comes to the role of the UN.
AP1 (Applicant): In Kosovo, resolution 1244 described KFOR as an international security presence under UN auspices and under unified command and control.
AP1 (Applicant): On the contrary, the ISAF resolution 1386 makes no reference to any comparable role for the UN.
AP1 (Applicant): It is worth noting that in Al-Jadda, the court did not consider that the acts of state armed forces were to be attributed to the UN simply because the UN Security Council had authorized the overall mission.
AP1 (Applicant): Similarly, the reporting mechanism to the UN provided for by the ISAF resolution cannot be a basis to attribute the airstrike to the UN.
AP1 (Applicant): This court has already rejected that argument in Al-Jadda, affirming that although the US, and I quote, was requested to report periodically to the Security Council about the activities of the multinational force, the United Nations did not thereby assume any degree of control over either the force or any other of the executive functions of the CPA, end quote.
AP1 (Applicant): It is significant that in Berami, the court found that the acts at issue in that case were not attributable to any troop contributing nation due to the lack of any suggestion or evidence of any actual troop contributing nation orders or interference in the present operational detention matter.
AP1 (Applicant): The situation in this case is quite the opposite.
AP1 (Applicant): There is no evidence of any interference by the UN in the order to conduct that strike.
AP1 (Applicant): The order came directly from the German colonel, who made decisions on his own.
AP1 (Applicant): Our third argument on attribution is that it is a well-established principle under international law, that the question of attribution is not an either or question.
AP1 (Applicant): The conduct would not cease to be attributable to Germany, even if it was hypothetically also concurrently attributable to the UN.
AP1 (Applicant): This possibility of concurrent attribution is consistent with the position of the International Law Commission in the Articles on Responsibility of International Organizations, which has a number of articles that envisage such joint responsibility, notably Article 48.
AP1 (Applicant): I now turn to jurisdiction.
AP1 (Applicant): It is our submission that the applicant and his sons were within the jurisdiction of Germany for two reasons.
AP1 (Applicant): First, Germany exercised control over the victims of the airstrike and sufficient control over the territory.
AP1 (Applicant): Second, Germany initiated investigations into the airstrike that are sufficient to establish a jurisdictional link for the purposes of the convention.
AP1 (Applicant): Germany and the intervening states make quite a lot of the fact that the court has repeatedly affirmed that jurisdiction is primarily territorial under Article I.
AP1 (Applicant): However, the court has also affirmed that jurisdiction under Article I is essentially about whether the state exercises authority and control over an individual.
AP1 (Applicant): Such control may arise through control of territory that the individual is in or through the acts of state agents who exercise authority and control over the individual directly, even if the individual is outside the state's territory.
AP1 (Applicant): What is crucial with respect to the exercise of control over an individual and that which creates a jurisdictional link is that the state must exercise control over a person's enjoyment of the particular rights at issue.
AP1 (Applicant): This has been stated expressly by the Human Rights Committee in its general comment number 36.
AP1 (Applicant): However, this point also follows by implication from the decision of this court in the Al-Skaini case when the court held that convention rights can be divided and tailored.
AP1 (Applicant): What matters then is the state's exercise of a level of control over an individual, such as to be able to affect the relevant rights, in this case, their right to life.
AP1 (Applicant): Through its agents abroad, Germany did have authority and control that enabled the state to affect the right to life of the people standing at the Kunduz River.
AP1 (Applicant): The airstrike that killed the applicant's son is an example of that control.
AP1 (Applicant): As in the Jaloud case, in which the jurisdiction of the Netherlands was confirmed for a fatal shooting at a checkpoint in Iraq, what is decisive here is the exercise of physical power and control over the person.
AP1 (Applicant): No logical distinction can be made between the exercise of power so as to be able to affect the right to life in the context of a patrol, a checkpoint, or an air operation.
AP1 (Applicant): The only difference is one of distance.
AP1 (Applicant): The simple fact that Colonel Klein decided not to deploy ground troops but to resort to an airstrike cannot justify a different conclusion with regard to jurisdiction.
AP1 (Applicant): Germany argues that the airstrike was an instantaneous act conducted against a legitimate target.
AP1 (Applicant): And thus, recalling the Bankiewicz ruling, it concludes that jurisdiction cannot be established under such circumstances.
AP1 (Applicant): It is crucial, though, to place the airstrike in context.
AP1 (Applicant): The strike of the 4th of September, 2009 was just one of numerous military operations Germany conducted in the Kunduz province over the course of what was already, at that time, an eight-year-long engagement in Afghanistan.
AP1 (Applicant): The attack was conducted for the purpose of asserting security and control.
AP1 (Applicant): It was a manifestation of Germany's exercise of public powers in the region, to use the words of the Al-Skaini judgment of this court.
AP1 (Applicant): German troops in Afghanistan were operating with the consent and at the invitation of the Afghan government.
AP1 (Applicant): They were mandated by the Security Council to support, quote, the maintenance of security.
AP1 (Applicant): The circumstances of the present case are indeed comparable to the cases of Jaloud and Al-Skaini.
AP1 (Applicant): The Dutch officers in Jaloud and the British officers in Al-Skaini were deployed as part of a UN Security Council mandated mission in which individuals were killed in the course of a security operation carried out pursuant to the Security Council's mandate and for the purpose of ensuring security in the area.
AP1 (Applicant): The same is true of the German officers deployed in Afghanistan.
AP1 (Applicant): In addition to Germany's exercise of control over the particular individuals in this case, Germany also exercised effective control over the area where the strike took place.
AP1 (Applicant): We refer to our written submissions on this issue.
AP1 (Applicant): our second broad argument with respect to jurisdiction is that the applicants' children were within the jurisdiction of Germany as a consequence of the initiation of an investigation into the airstrike.
AP1 (Applicant): In the Guzel-Utlu case, this chamber held that where the judicial authorities of a contracting state institute their own criminal investigation concerning a death which has occurred outside the jurisdiction of that state, the institution of that investigation is sufficient to establish a jurisdictional link between the state and the victim's relatives who later bring proceedings.
AP1 (Applicant): The Guzel-Utlu decision is not, as was argued, an isolated or exceptional case.
AP1 (Applicant): But rather, it is consistent with the longstanding case law of the court, as extensively elaborated in our written submissions.
AP1 (Applicant): It is consistent with the court's view that the procedural obligation to investigate that arises under Article 2 is a separate and detachable obligation under that article.
AP1 (Applicant): Contrary to the government's claims, the obligation to seek cooperation as a component of the procedural obligation under Article 2 is not confined to the seeking of mutual cooperation between contracting states.
AP1 (Applicant): In Guzel-Utlu, the grand chamber made clear that there are two types of cases where the duty to cooperate may arise with respect to the procedural right under Article 2.
AP1 (Applicant): The first type are cases where a state, as part of its own obligation to investigate, may have an obligation to seek cooperation from other states.
AP1 (Applicant): The second type of cases are cases where a state may have an obligation to assist another state that is conducting an investigation under its jurisdiction.
AP1 (Applicant): It is only in relation to that second case, where another state is conducting an investigation and seeking assistance, that the grand chamber spoke of the obligation of mutual cooperation among contracting states.
AP1 (Applicant): However, our case is the first.
AP1 (Applicant): It relates to Germany's obligation to seek cooperation for an investigation that it is conducting.
AP1 (Applicant): In such a case, there is nothing in the case law, or indeed in logic, that limits Germany to seeking cooperation only from other contracting states.
AP1 (Applicant): Finally, the fact that the initiation of investigations by the state is sufficient to establish a jurisdictional link would not render jurisdiction arbitrary or act as a chill on the opening of investigations.
AP1 (Applicant): As the court held in Gusel-Yutlu, a jurisdictional link can be established under Article 2, even when no investigation or proceedings have been instituted by that state.
AP1 (Applicant): This jurisdictional link will be present where the case has special features.
AP1 (Applicant): Those special features will depend on the particular circumstances of the case.
AP1 (Applicant): And our submission would include whether the state has an obligation under domestic or international law to conduct an investigation.
AP1 (Applicant): Mr. President, with your permission,
AP1 (Applicant): I now give the floor back to Mr. Kelly.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Mr. Kaleck.
AP2 (Applicant): Now turning to the Article 2 violations, we argue that Germany violated its procedural obligations under the convention from the moment following the airstrike.
AP2 (Applicant): Before going into the substance, the applicant wishes to response to the government's claim that the subject matter of the review depends on the basis of jurisdiction.
AP2 (Applicant): Even if the court based its jurisdiction merely on the initiation of proceedings by Germany, the review shall not be confined to investigative measures within the respondent state's territory.
AP2 (Applicant): This would be contrary to the court's own case law, which sees the jurisdictional link in line with the nature of the procedural obligation to carry out an effective investigation.
AP2 (Applicant): Yet this case is not exclusively about investigative flaws in Afghanistan.
AP2 (Applicant): The government falsely claims that all shortcomings of the investigation concern measures outside of the German territory.
AP2 (Applicant): The applicant wishes to address several flaws that happened in Germany to the substance of the violations.
AP2 (Applicant): Protection of the right to life under Article 2 entails that all reasonable steps must be taken to ensure that an effective, independent investigation is conducted, taking into full consideration the difficult security conditions.