GRAND CHAMBER
CASE OF HANAN v. GERMANY
(Application no. 4871/16)
 
JUDGMENT
 
Art 1 • Jurisdictional link engaging the obligation to investigate civilian deaths due to air strike ordered during active hostilities in extraterritorial armed conflict • Existence of “special features” establishing link: exclusive jurisdiction of Germany over its troops in respect of serious crimes, and obligation to investigate under international humanitarian law (IHL) and domestic law • Afghan authorities prevented for legal reasons from instituting investigation
Art 2 (procedural) • Adequacy, promptness, reasonable expedition and independence of the investigation • Absence of substantive normative conflict between IHL and Art 2 • Facts established in a thorough and reliable manner in order to determine legality of use of lethal force • Participation of next of kin and public scrutiny • Existence of remedy to challenge effectiveness of investigation

 
STRASBOURG
16 February 2021
This judgment is final but it may be subject to editorial revision. In the case of Hanan v. Germany,
The European Court of Human Rights, sitting as a Grand Chamber composed of:
 Jon Fridrik Kjølbro, President,
 Linos-Alexandre Sicilianos,
 Ksenija Turković,
 Paul Lemmens,
 Yonko Grozev,
 Helen Keller,
 Aleš Pejchal,
 Faris Vehabović,
 Carlo Ranzoni,
 Mārtiņš Mits,
 Tim Eicke,
 Lәtif Hüseynov,
 Lado Chanturia,
 Arnfinn Bårdsen,
 Erik Wennerström,
 Saadet Yüksel,
 Anja Seibert-Fohr, judges,
and Johan Callewaert, Deputy Grand Chamber Registrar,
Having deliberated in private on 26 February 2020 and on 2 December 2020,
Delivers the following judgment, which was adopted on the last-mentioned date:
PROCEDURE
1. The case originated in an application (no. 4871/16) against the Federal Republic of Germany lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) by an Afghan national, Mr Abdul Hanan (“the applicant”), on 13 January 2016. 2. The applicant was represented by Mr W. Kaleck, a lawyer practising in Berlin. The German Government (“the Government”) were represented by two of their Agents, Ms A. Wittling-Vogel and Ms N. Wenzel, of the Federal Ministry of Justice and Consumer Protection. 3. The applicant alleged that the respondent State had not conducted an effective investigation, as required by the procedural limb of Article 2 of the Convention, into an air strike of 4 September 2009 near Kunduz, Afghanistan, that had killed, inter alios, the applicant’s two sons. Relying on Article 13 of the Convention taken in conjunction with Article 2, the applicant further alleged that he had had no effective domestic remedy to challenge the decision of the German Federal Prosecutor General (Generalbundesanwalt) to discontinue the criminal investigation. 4. The application was allocated to the Fifth Section of the Court (Rule 52 § 1 of the Rules of Court). On 2 September 2016 notice of the application was given to the Government. On 27 August 2019 a Chamber of that Section, composed of Yonko Grozev, President, Angelika Nußberger, André Potocki, Carlo Ranzoni, Mārtiņš Mits, Lәtif Hüseynov, Lado Chanturia, judges, and Claudia Westerdiek, Section Registrar, decided to relinquish jurisdiction in favour of the Grand Chamber, none of the parties having objected (Article 30 of the Convention and Rule 72). 5. The composition of the Grand Chamber was determined according to the provisions of Article 26 §§ 4 and 5 of the Convention and Rule 24. It was also decided to examine the merits of the application at the same time as its admissibility (Article 29 § 1 of the Convention). At the second deliberations, Faris Vehabović and Arnfinn Bårdsen, substitute judges, replaced André Potocki and Robert Spano, who were unable to take part in the further consideration of the case (Rule 24 § 3). Jon Fridrik Kjølbro succeeded Linos-Alexandre Sicilianos as President of the Grand Chamber in the course of the proceedings. 6. The applicant and the Government each filed a memorial on the admissibility and merits of the case (Rule 59 § 1). 7. In addition, third-party comments were received from the Governments of Denmark, France, Norway, Sweden and the United Kingdom, as well as from the Human Rights Centre of the University of Essex, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano, the Open Society Justice Initiative and Rights Watch (UK), all of whom had been given leave by the President of the Grand Chamber to intervene in the written procedure (Article 36 § 2 of the Convention and Rules 71 § 1 and 44 § 3). The parties replied to the third-party observations in the course of their oral submissions at the hearing (Rules 71 § 1 and 44 § 6). 8. A hearing took place in public in the Human Rights Building, Strasbourg, on 26 February 2020 (Rules 71 and 59 § 3). The Governments of France and the United Kingdom as well as Rights Watch (UK), which had been given leave by the President to participate in the oral proceedings before the Grand Chamber, took part in the hearing. There appeared before the Court:
(a)  for the Government
 Ms A. Wittling-Vogel,
Ms N. Wenzel,  Agents,
Ms H. Krieger,  Counsel,
Ms S. Weinkauff, 
Mr S. Sohm, 
Ms M. Wittenberg, 
Ms J. Drohla, 
Mr C. Ritscher, 
Ms D. Gmel, 
Ms S. Heine, 
Mr C. Barthe,  Advisers;
(b)  for the applicant
 Mr W. Kaleck, lawyer,
Mr D. Akande, Counsel,
Mr F. Jessberger,
Ms C. Meloni,
Mr A. Schüller,
Ms I. Sychenkova, Advisers;
(c)  for the third-party intervener France
 Mr F. Alabrune, Agent,
Ms E. Leblond,
Mr R. Stamminger,
Mr E. Gouin, Advisers;
(d)  for the third-party intervener the United Kingdom
 Mr C. Wickremasinghe, Agent,
Sir James Eadie QC, Counsel,
Mr J. Swords, Adviser;
(e)  for the third-party intervener Rights Watch (UK)
 Mr S. Wordsworth QC, Counsel,
Mr C. Yeginsu,
Ms G. Schumacher, Advisers. The Court heard addresses by Ms Wittling-Vogel, Ms Krieger, Mr Kaleck, Mr Akande, Mr Alabrune, Sir James Eadie and Mr Wordsworth and the replies given by Ms Krieger, Mr Kaleck, Mr Akande, Sir James Eadie and Mr Alabrune to questions put by judges. THE FACTS
THE BACKGROUND TO THE CASE
9. The applicant was born in Omar Khel, Afghanistan, and lives there. 10. Following the attacks of 11 September 2001, the United States, together with the United Kingdom, launched military operations in Afghanistan on 7 October 2001. Called Operation Enduring Freedom, these operations included the destruction of terrorist training camps and infrastructure, as well as the capture of al-Qaeda leaders, and drove the Taliban from power. 11. On 16 November 2001 the German Parliament authorised the deployment of up to 3,900 German soldiers as part of Operation Enduring Freedom. The contingent included around 100 soldiers of the German Special Forces, who were subsequently involved in counterterrorism operations in Afghanistan. 12. In the beginning of December 2001, twenty-five prominent Afghan leaders met in Bonn under the auspices of the United Nations to decide on a plan for governing the country. They set up an Afghan Interim Authority and chose its leader. In the agreement of 5 December 2001 (“the Bonn Agreement”, as to which see paragraph 71 below), the participants at the conference requested the assistance of the international community in maintaining security in Afghanistan and envisaged the establishment of an International Security Assistance Force (“ISAF”). 13. On 20 December 2001 the United Nations Security Council authorised the establishment of ISAF. ISAF was to assist the Afghan Interim Authority in maintaining security in Kabul and surrounding areas and to enable the Interim Authority and the United Nations to operate in a safe environment. While ISAF mainly focused on maintaining security, the forces engaged in Operation Enduring Freedom continued to carry out counterterrorism and counter-insurgency operations. 14. On 22 December 2001 the German Parliament authorised the deployment of German armed forces as part of ISAF (see paragraph 91 below). 15. On 11 August 2003 NATO assumed command of ISAF and subsequently ISAF’s mission was expanded beyond the Kabul area. By the end of 2006 ISAF was responsible for all of Afghanistan. 16. After NATO assumed command of ISAF, ISAF Headquarters (“ISAF HQ”) and the Commander of ISAF (“COMISAF”) were placed under the command of the NATO Allied Joint Force Command and of the NATO Supreme Allied Commander Europe. Under ISAF HQ were five Regional Commands (“RCs”), which coordinated all regional civil-military activities conducted by the military elements of the Provincial Reconstruction Teams[1] (“PRTs”) in their respective areas of responsibility. While ISAF HQ / COMISAF retained operational control, the PRTs were placed under the command – in the form of tactical control – of the respective Regional Command. 17. German troops were deployed under RC North, which was led by Germany. At the relevant time, the Commander of RC North was the German Brigadier-General V. PRT Kunduz, which was part of RC North, was commanded by the German Colonel K. 18. Parallel to the command structure of ISAF, disciplinary and administrative command and control remained with the respective troop-contributing States (see paragraph 75 below). Therefore the deployed troops in PRT Kunduz were in that regard under the command and control of Colonel K., who himself was under the command and control of Brigadier-General V. The latter also commanded the entire German ISAF contingent in Afghanistan and was placed – via the commander of the Bundeswehr Joint Forces Operations Command – under the command of the Federal Ministry of Defence. 19. At the relevant time RC North consisted of approximately 5,600 troops, 4,245 of which were German soldiers. Around 1,500 soldiers were stationed at PRT Kunduz including two German special operations units. 20. After April 2009 the security situation in Kunduz province deteriorated. Particularly during the elections in August and September 2009, an increased number of attacks on ISAF troops occurred, which resulted in several casualties. According to a statement made by Colonel K. before a German parliamentary commission of inquiry, the troops had had to expect attacks whenever they left their base. The Circumstances of the caseThe air strike of 4 September 2009

21. On 3 September 2009 insurgents hijacked two fuel tankers, killing one of the two drivers. Later that day the fuel tankers became immobilised on a sand bank in the Kunduz River, around seven kilometres from the base of PRT Kunduz. To mobilise the fuel tankers again, the insurgents enlisted the population of nearby villages to siphon off (some of) the fuel from them. 22. At around 8 p.m. an informant tipped off PRT Kunduz about the hijacking of the fuel tankers. At around 9 p.m. PRT Kunduz was formally informed of the event. At 9.55 p.m. an aircraft previously tasked with another operation was instructed to locate the fuel tankers. At around 12.15 a.m. the tankers were spotted by the surveillance aircraft. The video footage transmitted from the aircraft to the command centre showed the two tankers as well as several vehicles next to the bank and numerous persons. In the course of the night, Captain X. – who was present at the command centre along with Staff Sergeants W. and Y. – repeatedly went to see the interpreter on duty in order to obtain direct information from the informant and/or to transmit questions from Colonel K. to the informant, who had first informed PRT Kunduz of the hijacking. At around 12.30 a.m. the informant reported the partial emptying of the tankers by the armed insurgents, as well as the absence of civilians at the sand bank. The informant’s description corresponded to the conditions that could be discerned on the video footage. At 12.48 a.m., the surveillance aircraft ran low on fuel and returned to its base. Shortly thereafter, Staff Sergeant W. contacted ISAF HQ to request a replacement aircraft. He was told that air support could be provided only if a “troops in contact” situation was declared, that is, if ISAF troops were in actual contact with insurgents. At around 1 a.m., Colonel K. declared “troops in contact”, even though there had been no enemy contact in the literal sense of the term, and two United States Air Force (USAF) F-15 aircraft were ordered to the riverbank, where the fuel tankers were still stuck and continued to be siphoned off. 23. The F-15 aircraft reached the air space above the sand bank at around 1.10 a.m. Discussions between the pilots and the command centre ensued about the use of 500-pound or 2,000-pound bombs and the potential damage to civilian objects near the sand bank. In response to Colonel K.’s repeated queries, the informant confirmed that only insurgents and no civilians were present near the sand bank. After refusing suggestions by the pilots to make a “show of force” by flying at low altitude over the tankers to disperse the people on the ground, Colonel K. gave the order to bomb the still immobilised fuel tankers. Two 500-pound bombs were dropped at 1.49 a.m. 24. A first post-attack reconnaissance was performed by the USAF F-15 aircraft immediately after their air strike. In addition, an unmanned aircraft inspected the site of the air strike at around 8 a.m. the following morning. 25. The air strike destroyed the two fuel tankers and killed, inter alios, the applicant’s two sons: Abdul Bayan and Nesarullah. They were 12 and 8 years old, respectively. The total number of victims of the air strike has never been established (see paragraphs 40 and 65-69 below). The German Government made ex gratia payments of 5,000 United States dollars per person to the families of 91 killed individuals and to eleven injured persons. Investigations into the air strikeOn-site investigation

26. Later on that same morning, after being informed of the air strike, Brigadier-General V. sent an investigation team of the German military police (Feldjäger) from Masar-i-Sharif to Kunduz to support PRT Kunduz in the investigation into the air strike. 27. At 12.13 p.m. on the same day, a team from PRT Kunduz departed for the site of the air strike, which it reached at 12.34 p.m. No members of the team from Masar-i-Sharif, which had left from their base at 12.24 p.m. and had not yet arrived at the base of PRT Kunduz, participated in the on-site visit. The team from PRT Kunduz came across an extensively altered site, with only a few destroyed cars and no bodies. During the visit, the team, who were afforded protection by some one hundred members of the Afghan security forces, came under attack, but managed to continue investigating after returning fire. After the team’s return to the base at 2.23 p.m., an evaluation meeting was held from 2.45 p.m. onwards, which involved Colonel K. and members of the military police team deployed from Masar-i-Sharif, who had arrived in the meantime. 28. On 4 and 5 September 2009, members of PRT Kunduz, the military police and the ISAF “Initial Action Team” (see paragraph 65 below) visited hospitals and villages in the area and interviewed several persons regarding the air strike. Colonel K. was partially involved in some interviews and was kept up to date regarding the investigation. 29. The military police submitted their report to Brigadier-General V. on 9 September 2009. Investigation by the German public prosecution authorities
30. On the day of the air strike, the chief legal officer of the armed forces informed the public prosecutor’s office in Potsdam (where the Bundeswehr Operations Command is located) of the air strike. On 7 September 2009, the public prosecutor’s office in Potsdam launched a preliminary investigation, which was later transferred to the public prosecutor’s office in Leipzig (the then-duty station of Colonel K.) and subsequently to the Dresden Public Prosecutor General (the prosecution authority superior to the Leipzig public prosecutor). After further preparatory work, which included exchanges with the Federal Ministry of Defence concerning the legal framework of the military deployment in Afghanistan and the potential existence of an exculpatory defence (Rechtfertigungsgrund), on 5 November 2009 the Dresden Public Prosecutor General requested the office of the Federal Prosecutor General to review the possibility of taking over the prosecution of the case in the light of possible liability under the Code of Crimes against International Law (see paragraphs 94-95 and 101 below). By this time, the Federal Prosecutor General’s office was already in the process of establishing whether it had competence, having initiated a preliminary investigation on 8 September 2009. 31. As to the course of the investigation, the Federal Prosecutor General, by letter of 27 November 2009, asked the Bundeswehr Operations Command to forward all findings of fact relevant to the air strike in question for further clarification. Three days later the Bundeswehr Operations Command forwarded a considerable number of reports. It provided further additional documentation on 16 December 2009. By letter of 8 December 2009, the Federal Prosecutor General asked for copies of the files presented to the parliamentary commission of inquiry (see paragraph 69 below), which were subsequently provided to him; he also received copies of the transcripts of the commission’s hearings. On 21 December 2009 the Federal Prosecutor General sent a comprehensive catalogue of questions to the Bundeswehr Operations Command, which were answered in a letter dated 8 February 2010. On 23 February 2010 a letter with additional questions was addressed to the German Federal Ministry of Defence, which responded to these. 32. On 12 March 2010, on the basis of the factual findings up to that point, the Federal Prosecutor General opened a criminal investigation against Colonel K. and Staff Sergeant W., who had assisted Colonel K. on the night of the air strike. From 22 to 25 March 2010 the Federal Prosecutor General questioned the two suspects and interviewed two witnesses (Captain X. and Staff Sergeant Y.), who had been present at the command centre of the base in Kunduz at the relevant time. Moreover, the collection of documents and the video material from the aircraft were analysed. 33. On 16 April 2010 the Federal Prosecutor General discontinued the criminal investigation due to a lack of sufficient grounds for suspicion that the suspects had incurred criminal liability under either the Code of Crimes against International Law or the Criminal Code. He determined that the situation in Afghanistan at the material time, at least in the northern part of the country where the German armed forces were deployed, amounted to a non-international armed conflict within the meaning of international humanitarian law, notwithstanding the involvement of international troops. He concluded that Afghanistan had consented to the ISAF deployment in a manner valid under international law and ISAF was fighting on behalf of the Afghan authorities. The Taliban insurgency and the groups affiliated thereto, described in detail in the discontinuation decision, were to be classified as a “party to the conflict” under international law. The existence of this non-international armed conflict triggered the applicability of international humanitarian law (see also Article 25 of the Basic Law, cited in paragraph 93 below) and of the Code of Crimes against International Law. German soldiers forming part of ISAF were regular combatants and therefore not criminally liable for acts of war permitted under international law. The Federal Prosecutor General concluded that Colonel K.’s liability under the Code of Crimes against International Law, notably its Article 11 § 1 no. 3 (see paragraph 95 below), was excluded because Colonel K. did not have the necessary intent to kill or harm civilians or damage civilian objects. Liability under the Criminal Code, for murder but also for any other offence, was excluded because the lawfulness of the air strike under international law served as an exculpatory defence. 34. A press release summarising the main findings of the Federal Prosecutor General and indicating that most of the factual information was classified was issued on 19 April 2010. A redacted version of the discontinuation decision was prepared on 13 October 2010. 35. The discontinuation decision stated that the following pieces of evidence had been assessed:
“– COMISAF investigation report with all annexes;
– NATO/ISAF provisions (Standard Operating Procedures, Rules of Engagement, Tactical Directives, Intelligence Evaluation Matrix, Special Instructions for Air and Space Operations);
– report of the Military Police of 9 September 2009, with 44 annexes (including photographs and video footage);
– written statement by Colonel K. of 5 September 2009 made to the Chief of Staff of the German Armed Forces;
– report by Colonel N., member of the ISAF fact-finding team, of 6 September 2009;
– report of the representative of the Kunduz region to the Afghan President of 4 September 2009;
– report of the Afghan commission of inquiry to the Afghan President;
– United Nations Assistance Mission in Afghanistan (‘UNAMA’) list of potential civilian victims of the air strike;
– [non-governmental organisation] report of 5 September 2009 [classified];
– report of the ISAF Initial Action Team of 6 September 2009;
– minutes of the conversations at PRT Kunduz with the Afghan commission of inquiry, with local representatives and with a delegation of the Initial Action Team;
– written statement by the Operations Command of the German Armed Forces of 8 February 2010 in response to the questions by the Federal Prosecutor General of 21 December 2009;
– 164 file folders of the Federal Ministry of Defence;
– minutes of the meetings of the Parliamentary Defence Committee sitting as First Commission of Inquiry, in which the two suspects and Captain X. were examined;
– examinations of the two suspects as well as of the witnesses Captain X. and Staff Sergeant Y. by the Federal Prosecutor General;
– minutes of the radio traffic between the pilots of the F‑15 aircraft and Staff Sergeant W. and video footage.”
36. The Federal Prosecutor General considered that two aspects, in particular, had to be clarified: Colonel K.’s subjective assessment of the situation when he ordered the air strike; and the exact number of persons who had suffered death or injury as a result. 37. He found credible Colonel K.’s account that he had assumed that only Taliban insurgents, and no civilians, had been located near the fuel tankers when he ordered the air strike. It had been corroborated by a large number of objective circumstances, the statements of the persons who had been present at the command centre, and the video footage from the aircraft prior to and during the air strike. 38. Given that the release of the bombs had occurred at 1.49 a.m., during Ramadan, with the nearest village located at least 850 metres away, in an area that was a stronghold of the insurgents, the presence of civilians would have seemed unlikely from the standpoint of an objective observer. There had also been an intelligence warning regarding a planned attack on the German base involving vehicles packed with explosives. Numerous such attacks had already been perpetrated in Afghanistan in the months leading up to 4 September 2009. Colonel K. had had no reason to doubt the accuracy of the intelligence provided by the informant. He had worked with that same informant only a few days before and the information provided had been reliable. Captain X., through whom he had had at least seven calls put through to the informant in order to verify the evolution of the situation and to confirm that only insurgents were present at the scene, had for his part regarded the informant as reliable. The intelligence given by the informant corresponded to the video feed from the aircraft. Colonel K.’s conduct was in line with the care he had exercised on earlier occasions in taking decisions that might cause collateral damage to civilian life. 39. The other persons present at the command post had all credibly testified that they had operated on the assumption that only insurgents and no civilians had been present at the location. It was unlikely that any additional insights as to whether or not Colonel K. had acted in the expectation of civilian casualties when he ordered the air strike could be gleaned by examining additional witnesses. Captain X., who was also examined, had been the only person present at the time the informant’s intelligence was transmitted and there were no indications that he had transmitted the said intelligence incorrectly. The radio communication between the pilots and the command centre did not contain any indication that Colonel K. had acted in the expectation of civilian casualties. It had not been in dispute that the fuel tankers had been in the hands of Taliban fighters and there were no indications that these fighters were no longer near the fuel tankers at the time of the air strike. Moreover, as the Taliban were indistinguishable from civilians based on attire, it was not possible for the pilots to help establish whether it was visually apparent that the persons around the fuel tankers had included civilians. 40. In the case at hand, the number of civilian casualties could not serve as circumstantial evidence from which Colonel K.’s subjective expectations could be deduced. The number of persons killed or injured by the air strike, and how many of these were Taliban or civilians, could not be ascertained. Having regard to the divergent findings of the different reports in this respect, the methods by which they had been established and the available evidence, including the video material, it was probable that about fifty persons had been killed or injured. It was certain that two known Taliban commanders were among those killed, and the available reports allowed the conclusion that there were significantly more Taliban than civilians among the victims. It was not possible to clarify this matter further as the social and religious mores of the Afghan population prevented use of modern forensic investigation techniques, including the exhumation of bodies or DNA analysis, that would be required. In any event the number of people present on the scene at the time of the air strike did not constitute a reason to question Colonel K.’s assumption that he was dealing exclusively with Taliban fighters. 41. Regarding Colonel K.’s liability under the Code of Crimes against International Law, the Federal Prosecutor General considered that the air strike of 4 September 2009 met the functional context requirement and the objective constituent elements of Article 11 § 1 no. 3 of the Code, as it constituted an attack by military means in connection with the non-international armed conflict in Afghanistan. The subjective constituent elements of the offence, by contrast, were not present. Direct intent to cause disproportionate collateral damage was required. Colonel K. had credibly testified that he had acted on the premise that only insurgents were present at the scene. Not only had he thus not expected damage to civilians with the certainty required by the provision; he had, in fact, not expected such damage to occur at all. The question of the disproportionality of the expected collateral damage thus did not even arise. 42. The fuel tankers had been hijacked by an organised group of armed Taliban fighters. Both the members of that group and the fuel tankers were legitimate military targets at the time Colonel K. had ordered the air strike. In respect of the Taliban, the Federal Prosecutor General explained that under international law all persons who had become functionally integrated into, and exercised a continuous combat function within, an organised armed group were not civilians but legitimate military targets. Such persons could also be attacked outside the scope of ongoing hostilities until they had given up this combat function in a lasting and conclusive manner (see paragraph 80 below). 43. The Federal Prosecutor General considered that general criminal law had remained applicable and concluded that his competence extended to prosecuting offences under the Criminal Code where the military action fell within the scope of the Code of Crimes against International Law. However Colonel K. could also not be held liable under the Criminal Code, and Staff Sergeant W. could not be liable for having aided and abetted Colonel K. While the objective and subjective constituent elements of the offence of murder had been present, Colonel K.’s actions had been lawful under international law, which served as an exculpatory defence in respect of military action. 44. The international humanitarian law status of the victims of the air strike was crucial for determining its lawfulness. Armed fighters affiliated with a non-State party to a non-international armed conflict and civilians participating directly in hostilities were legitimate targets for military attacks, whereas civilians not directly participating in hostilities were not. The armed Taliban fighters who had hijacked the two fuel tankers – and who probably accounted for most of the victims of the air strike – were indeed members of an organised armed group that was party to the armed conflict. They were thus legitimate military targets whose “destruction” was permissible within the bounds of military necessity, in respect of which no restrictions could be inferred in the present case. 45. The air strike had also led to the killing of civilians who were protected under international humanitarian law and were not legitimate targets of military attack. It could be accepted as a premise that all those air strike victims who were not Taliban fighters were civilians not taking a direct part in the hostilities, including those who were helping the Taliban to free the fuel tankers from the sand bank and those who were trying to obtain fuel for their own benefit. However, Colonel K.’s order to launch the air strike was legitimate under international law even considering that it had also killed civilians protected under international humanitarian law. International humanitarian law only prohibited attacks launched against civilians as such or against a military objective when the civilian damage to be expected at the time of ordering the attack was disproportionate (“excessive”) to the expected, actual and direct military advantage (see paragraph 81 below). The military standard of disproportionality, that is to say the prohibition of excessiveness, could not be equated with the stricter benchmark of a lack of reasonableness. The attacker’s objectively based expectation at the time of the military action was decisive, both in respect of the tactical military advantage and foreseeable civilian collateral damage. Civilian collateral damage was relevant to the proportionality test only if a commander had failed to take “feasible precautions” which would have enabled him to anticipate an event of major civilian collateral damage occurring. Disproportionality in this sense could be imputed only in a case of patent excess. 46. The air strike at issue had pursued two military objectives: to destroy the fuel tankers and the fuel hijacked by the Taliban; and to kill Taliban fighters. Given the circumstances known to Colonel K. (the distance of the sand bank from inhabited settlements, the time of night and the presence of armed Taliban), and given the statements made by the informant, Colonel K. had had no reason to suspect the presence of protected civilians at the scene. There had been no possibility of implementing further reconnaissance and/or precautionary measures in a timely manner. The danger that the fuel tankers or the fuel would be recovered by the Taliban was not one which Colonel K. had been obliged to accept. The circumstances provided sufficient indications that the persons in question were the legitimate target of a military attack: no absolute certainty was required. 47. However, even assuming for the sake of argument that Colonel K. ought to have anticipated the killing of several dozen protected civilians, this would not have been out of all proportion to the expected military advantage. Nor would it have breached the precept to use the mildest possible means. The question of means had in fact been discussed before the air strike among Colonel K., Staff Sergeant W. and the pilots. Contrary to the latter’s recommendation to deploy heavier ordinance, Colonel K. had opted for the smallest bomb size available and for the use of delayed detonation fuses, which limited the bombs’ effective range. 48. The conclusion that the attack order was permissible under international law was unaffected by the general obligation to give advance warnings before an attack that could potentially cause collateral damage to the civilian population. Not only had Colonel K. been working on the justifiable assumption that the attack he had ordered would not hit any civilians, but the aforementioned obligation could be dispensed with if the prevailing circumstances so dictated (see paragraph 81 below). In the case at hand giving a warning could have thwarted the legitimate military objective of killing the Taliban fighters. 49. Any alleged breach of internal rules such as the ISAF Rules of Engagement, which involved a self-imposed restriction in the interests of achieving a long-term political solution to the Afghan conflict and which afforded a higher level of protection to the civilian population than required under international law, was irrelevant for evaluating the lawfulness of military conduct. The applicant’s involvement in the investigation and his challenges to the discontinuation decision
(a)   Access to the investigation file
50. On 12 April 2010 the applicant, through his legal representative, filed a criminal complaint with the Federal Prosecutor General regarding the death of, inter alios, his two sons. He also requested access to the investigation file. The applicant’s representative presented an authority to act on the applicant’s behalf, as well as another authority entitling him to act on behalf of the relatives of a further 113 persons allegedly killed by the air strike. By letter of 27 April 2010 the Federal Prosecutor General informed the applicant’s representative that the criminal investigation had been discontinued in the meantime, without the applicant having been heard, and that the applicant’s request for access to the investigation file would require a more detailed assessment concerning the applicant’s victim status. The applicant subsequently made submissions by letters of 9 June and 7 July 2010, which the Federal Prosecutor General by letters of 16 July and 3 September 2010 rejected as ill-founded. On 1 September 2010 the applicant’s legal representative limited his request for access to the investigation file, previously made on behalf of all the persons he was representing, to that of the applicant. On 3 September 2010 the applicant was granted access to the unclassified parts of the investigation file. A redacted version of the discontinuation decision was served on the applicant’s representative on 15 October 2010, two days after it was finalised. The applicant’s representative inspected the file at the Federal Prosecutor General’s office on 26 October 2010. (b)   Motion to compel public charges
51. On 15 November 2010 the applicant filed a motion with the Düsseldorf Court of Appeal seeking that public charges be brought against the suspects or, in the alternative, that the competent public prosecutor continue investigating the matter with a view to determining their liability under the Criminal Code. He submitted, in particular, that certain additional investigative measures were required to comprehensively establish the objective circumstances of the air strike. 52. On 13 December 2010 the Federal Prosecutor General submitted his observations and moved for the motion to be dismissed as inadmissible for failure to comply with the formal requirements or, in the alternative, as ill-founded on the basis that the applicant’s submissions could not establish a sufficient ground for suspicion that the suspects were criminally liable. Refuting the applicant’s argument as to the alleged deficiencies of the investigation, he maintained that all necessary investigative measures which offered any prospect of success had been carried out. Moreover, even on the basis of the applicant’s factual submissions, there would not have been a breach of international humanitarian law. 53. On 16 February 2011 the Düsseldorf Court of Appeal dismissed the applicant’s motion to compel public charges as inadmissible. It considered that the applicant’s submission did not satisfy the formal requirements (see paragraph 99 below). The applicant had failed to discuss – to a sufficient extent or at all – some of the evidence, on which the Federal Prosecutor General’s discontinuation decision of 13 October 2010 was based and which was listed there. It was not clear from his submissions which pieces of evidence he had had, and which he had not had, access to. Contrary to his obligation to also present facts which may exonerate the suspects, the applicant had limited himself to presenting selected parts of certain pieces of evidence, in particular those which appeared to him to corroborate the accusations. Notably, he had not thoroughly discussed (i) the two-page statement given by Colonel K. to the Chief of Staff of 5 September 2009; (ii) the report of the military police of 9 September 2009; (iii) the minutes of the radio traffic between the pilots and Staff Sergeant W. immediately prior to the bomb release; or (iv) the video footage from the F-15 aircraft, and had not argued why the Federal Prosecutor General’s assessment of those pieces of evidence had allegedly been wrong. In so far as the applicant had submitted that the non-governmental organisation report, to which he had been granted access, had concluded that the air strike was unlawful and in breach of international humanitarian law, he had failed to state the key considerations that led to this assessment. The same held true for the applicant’s reference to the note of Brigadier-General V. of 4 September 2009. As a consequence, his factual submissions did not enable the Court of Appeal to determine, based on the applicant’s brief alone, whether there was sufficient ground for suspicion against the suspects and hence reason to bring public charges. The applicant had furthermore failed to offer suitable evidence, or any evidence at all, for a number of submissions incriminating the suspects, notably the allegation that the local informant had not been present at the sand bank, that the pilots of the F-15 aircraft had demanded further reconnaissance, that many civilians had been outside during the night of the air strike as it was Ramadan, and that the Taliban insurgents normally acted in groups of ten individuals or less. (c)   Complaint of a breach of the right to be heard
54. On 28 March 2011 the applicant filed a complaint of a breach of the right to be heard (Gehörsrüge) in respect of the Court of Appeal’s order. He asserted that the Court of Appeal had taken its decision without having given him the opportunity to comment on either the Federal Prosecutor General’s observations or those of defence counsel. Moreover, it had not been foreseeable that he had to elaborate on his knowledge of specific pieces of evidence relied on by the Federal Prosecutor General and to present the essential content of those documents. The Court of Appeal should have advised him accordingly prior to dismissing his motion. In any event, requiring him to discuss each and every piece of evidence relied on by the Federal Prosecutor General would render the motion to compel public charges ineffective, given the scope of the file. 55. By order of 31 March 2011 the Court of Appeal dismissed the applicant’s complaint as ill-founded. The decision of 16 February 2011 had exclusively been based on the applicant’s submissions as such, in order to establish whether the formal requirements had been complied with. It had taken into account that he had been granted access to the investigation file in a limited manner. There had been no duty on the court to point out gaps in the applicant’s submissions, as the time-limit for the submission of the motion to compel public charges had expired and the formal defects could no longer be rectified. Proceedings before the Federal Constitutional Court
56. On 17 March 2011 and 27 April 2011 the applicant, represented by counsel, lodged constitutional complaints with the Federal Constitutional Court. The later complaint encompassed the earlier one and, in addition, challenged the Court of Appeal’s decision of 31 March 2011. In alleging that the criminal investigation had been ineffective, the applicant argued in particular that not all necessary investigative measures had been taken in order to comprehensively establish the objective circumstances of the air strike; neither the applicant, nor eyewitnesses, nor military experts had been examined with a view to determining whether the suspects could justifiably base their decision to order the air strike on the information available to them, and whether sufficient precautionary measures had been taken. The number of victims had not been established, nor had there been medical reports on the cause of death. Moreover, the applicant as the next of kin of two victims of the air strike had been insufficiently involved in the proceedings, in view of the limited and delayed access to the investigation file, the failure to be heard, the delay in the service of the Federal Prosecutor General’s discontinuation decision and the excessive admissibility requirements applied by the Court of Appeal. 57. On 8 December 2014 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 627/14) in so far as it concerned access to the investigation file. The applicant did not challenge this decision in the present application. 58. On 19 May 2015 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 987/11) in so far as it concerned the effectiveness of the criminal investigation, finding that it was, in any event, ill-founded. While the applicant had a right to an effective criminal investigation, both the discontinuation decision of the Federal Prosecutor General and the decision of the Düsseldorf Court of Appeal in respect of his motion to compel public charges had satisfied the respective requirements. 59. The discontinuation decision of the Federal Prosecutor General had neither misjudged the importance of the right to life and the resulting obligations of the State to protect it nor the requirement to carry out an effective investigation into deaths as defined by the case-law of the Federal Constitutional Court and of the European Court of Human Rights. The Federal Prosecutor General’s decision had described the investigations that he had carried out and concluded that there were insufficient indications to establish reasonable grounds for suspicion. That decision had mainly been based on the presumption that the suspects had been convinced, at the time of ordering the air strike, that the persons in the immediate vicinity of the fuel tankers were armed insurgents, which excluded the intent required for liability under Article 11 § 1 no. 3 of the Code of Crimes against International Law. That determination had not been arbitrary and thus did not warrant objections under constitutional law. 60. Additional investigatory measures, such as the examination of witnesses who had observed the air strike, would not have changed this. The bombing itself and the deaths of numerous civilians had never been in doubt. The key aspect of the decision to discontinue the investigation had been that it could not be proven that the suspects knew with certainty that the air strike would injure or even kill civilians. Neither that finding nor the investigations carried out to that end raised concerns under constitutional law. Lastly, the Federal Prosecutor General’s position – that he was also competent to investigate offences under the Criminal Code that might have been committed through the same act that led him to investigate offences under the Code of Crimes against International Law – was not arbitrary. 61. The Federal Constitutional Court further held that the Düsseldorf Court of Appeal’s decision of 16 February 2011 did not raise concerns under constitutional law either. The investigations that had been carried out and their documentation by the Federal Prosecutor General satisfied constitutional requirements. A subsequent review decision by a court thus could not result in a breach of the right to an effective criminal investigation. In this respect, it was not decisive whether the court had dismissed the motion to compel public charges as inadmissible or as ill-founded, as long as an examination of the challenged decision to discontinue the investigation could be discerned. The Court of Appeal had dismissed that motion as inadmissible, but the manner and the scope of the Court of Appeal’s reasoning showed that it had conducted a detailed examination of the Federal Prosecutor General’s discontinuation decision and the investigations documented therein. 62. Moreover, the Federal Constitutional Court found that the Court of Appeal’s decision had not misjudged the importance and scope of the applicant’s right to effective protection of his legal interests (Grundrecht auf effektiven Rechtsschutz). The requirements applied by the Court of Appeal in respect of the content of the motion to compel public charges did not raise concerns under constitutional law in this respect. As the applicant had, to a significant extent, based his motion seeking to compel public charges on the content of the investigation file, he had to provide the essential content of the pieces of evidence which he cited; otherwise the legislature’s intent that the competent court had to be able to examine the motion’s conclusiveness solely based on the brief itself would be undermined. A selective, or even distorted, representation of parts of a suspect’s account or of witness examinations could create an inaccurate image of the result of the investigation which could not easily be corrected. This might oblige the applicant to also submit information on circumstances which could exonerate a suspect. In the present case, the applicant had not satisfied these requirements. 63. Lastly, the Court of Appeal’s decision had not breached the applicant’s right to be heard. In this respect, the Federal Constitutional Court endorsed the reasons advanced by the Court of Appeal in its order of 31 March 2011. 64. The Federal Constitutional Court’s decision was served on the applicant’s counsel on 13 July 2015. Other investigations
65. After COMISAF learned of the air strike on the morning of 4 September 2009, he initiated an investigation. The so-called “Initial Action Team” arrived in Kunduz late that afternoon. The team was shown video footage from the F-15 aircraft and interviewed several members of PRT Kunduz, including Colonel K. The following day, it conducted an on-site investigation, visited a hospital and met with Afghan officials. In its report of 6 September 2009, it recommended further assessment of the events by a Joint Investigation Board. This board concluded its investigation on 26 October 2009 and published its findings in a second report (“COMISAF investigation report”). Both reports are classified “NATO-/ISAF-Confidential”. 66. By order of the President of the Islamic Republic of Afghanistan, an inquiry commission was sent to Kunduz on 4 September 2009 and interviewed witnesses of the air strike and secured evidence. Its final report was published on 10 September 2009 and concluded that the air strike had killed 99 persons, of whom 69 were insurgents and 30 civilians. In addition, both insurgents and civilians had been injured. The report further stated that the air strike had been directed at the insurgents and had succeeded in weakening the Taliban network. 67. The United Nations Assistance Mission in Afghanistan (UNAMA) collected information about possible victims of the air strike. It compiled a list with personal details of 109 deceased and 33 injured. In addition, it reported on the air strike in its annual report (UNAMA, Annual Report on Protection of Civilians in Armed Conflict 2009, January 2010), as follows:
Air strike against hijacked oil tankers in Aliabad District, Kunduz Province
“On 3 September, a group of Taliban hijacked two fuel tankers along the main Kunduz-Baghlan road. They tried to cross the Kunduz river towards Chahar Dara District, near to Omarkhel village in Aliabad District. The trucks got stuck in the river bed and when the insurgents failed to release them, the Taliban invited nearby villagers to collect the fuel. As the villagers were siphoning off the fuel, several hours later, in the early hours of the morning of 4 September, an air strike was conducted. Investigations were complicated as a result of the ensuring [sic] fireball, which incinerated a large number of people making identification extremely difficult. It is not disputed that some Taliban were at the site but it should have been apparent that many civilians were also in the vicinity of the trucks. According to UNAMA HR’s investigations, 74 civilians, including many children, were killed.”
68. The International Committee of the Red Cross (“ICRC”) also investigated the air strike from 5 September 2009 onwards and submitted a confidential report to ISAF on 30 October 2009. 69. On 16 December 2009 the German Parliament established a commission of inquiry to assess, inter alia, whether the air strike was in compliance with the mandate given by Parliament to the German armed forces, with the operative planning and with the applicable orders and rules of engagement. On 20 October 2011 the commission concluded its investigation and published its report. As to the number of victims of the air strike, it noted that different reports indicated between 14 and 142 deceased (14 to 113 civilians) and 10 to 33 injured persons (4 to 9 civilians). Regarding the question of compliance with the applicable orders and rules of engagement, it came to the conclusion that Colonel K. made certain procedural mistakes when ordering the air strike, and partially violated the applicable ISAF rules of engagement. Consequently, based on the information available to the commission, the air strike could not be considered proportionate and should not have been ordered. However, the commission also stated that Colonel K. acted at the relevant time to the best of his knowledge and to protect “his” soldiers. Therefore his decision to order the air strike was comprehensible. Civil proceedings for compensation
70. The applicant together with another individual lodged a civil action for compensation against the Federal Republic of Germany in connection with the killing of their relatives by the air strike of 4 September 2009. After the Bonn Regional Court had rejected the action and the plaintiffs’ appeal before the Cologne Court of Appeal had been to no avail, the Federal Court of Justice, by judgment of 6 October 2016, rejected as ill-founded the plaintiffs’ appeal on points of law. It left open the question whether Germany could be sued for extraterritorial military operations of the Bundeswehr under NATO operational command. However, it found, firstly, that the plaintiffs, as individuals, could not claim compensation from Germany for a breach of international humanitarian law based directly on international law; such right could, as a rule, only be exercised by their State. It found, secondly, that German law on State liability was not applicable to harm done to foreign citizens by the German armed forces in the framework of a deployment to an armed conflict overseas. Irrespective of this question of applicability, such a claim by the plaintiffs was ruled out in any event because there had been no breach of official duty by a German soldier or authority, notably no culpable breach of the rules of international humanitarian law by Colonel K. The Court of Appeal had not erred in law when it determined, basing itself on the facts established by the Regional Court, that the presence of civilians at the site of the air strike had not been objectively foreseeable for Colonel K. at the time of ordering the air strike, all feasible precautionary measures having been taken. The Federal Constitutional Court declined to consider the applicant’s constitutional complaint lodged in respect of these civil proceedings (file no. 2 BvR 477/17, order of 18 November 2020, delivered on 16 December 2020). RELEVANT LEGAL FRAMEWORK AND PRACTICE
International MaterialUnited Nations Security Council Resolutions and international agreements concerning Afghanistan and ISAFAgreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”)

71. The relevant passages of the above agreement read as follows:
“The participants in the UN talks on Afghanistan,
... Reaffirming the independence, national sovereignty and territorial integrity of Afghanistan,
Acknowledging the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice,
... Recognizing that some time may be required for a new Afghan security force to be fully constituted and functional and that therefore other security provisions detailed in Annex I to this agreement must meanwhile be put in place,
... Have agreed as follows:
 
THE INTERIM AUTHORITY
... V. Final provisions
...
3)  The Interim Authority shall cooperate with the international community in the fight against terrorism, drugs and organized crime. It shall commit itself to respect international law and maintain peaceful and friendly relations with neighbouring countries and the rest of the international community.
... ANNEX I
INTERNATIONAL SECURITY FORCE
1. The participants in the UN Talks on Afghanistan recognize that the responsibility for providing security and law and order throughout the country resides with the Afghans themselves. To this end, they pledge their commitment to do all within their means and influence to ensure such security, including for all United Nations and other personnel of international governmental and non-governmental organizations deployed in Afghanistan. 2. With this objective in mind, the participants request the assistance of the international community in helping the new Afghan authorities in the establishment and training of new Afghan security and armed forces. 3. Conscious that some time may be required for the new Afghan security and armed forces to be fully constituted and functioning, the participants in the UN Talks on Afghanistan request the United Nations Security Council to consider authorizing the early deployment to Afghanistan of a United Nations mandated force. This force will assist in the maintenance of security for Kabul and its surrounding areas. Such a force could, as appropriate, be progressively expanded to other urban centres and other areas. 4. The participants in the UN Talks on Afghanistan pledge to withdraw all military units from Kabul and other urban centers or other areas in which the UN mandated force is deployed. It would also be desirable if such a force were to assist in the rehabilitation of Afghanistan’s infrastructure.”
United Nations Security Council Resolution 1386 (2001) of 20 December 2001
72. The above resolution reads as follows:
“The Security Council,
Reaffirming its previous resolutions on Afghanistan, in particular its resolutions 1378 (2001) of 14 November 2001 and 1383 (2001) of 6 December 2001,
Supporting international efforts to root out terrorism, in keeping with the Charter of the United Nations, and reaffirming also its resolutions 1368 (2001) of 12 September 2001 and 1373 (2001) of 28 September 2001,
Welcoming developments in Afghanistan that will allow for all Afghans to enjoy inalienable rights and freedom unfettered by oppression and terror,
Recognizing that the responsibility for providing security and law and order throughout the country resides with the Afghan themselves,
Reiterating its endorsement of the Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions, signed in Bonn on 5 December 2001 (S/2001/1154) (the Bonn Agreement),
Taking note of the request to the Security Council in Annex 1, paragraph 3, to the Bonn Agreement to consider authorizing the early deployment to Afghanistan of an international security force, as well as the briefing on 14 December 2001 by the Special Representative of the Secretary-General on his contacts with the Afghan authorities in which they welcome the deployment to Afghanistan of a United Nations-authorized international security force,
Taking note of the letter dated 19 December 2001 from Dr.

Outcome for Article 2: no_violation