The European Court of Human Rights (ECHR) ruled that Germany had not violated its convention on the protection of human rights during its investigation into an airstrike carried out in 2009 by NATO in Afghanistan. This strike killed civilians.
“The investigation carried out by the German authorities following the fatal air strike within the framework of NATO in Afghanistan did not violate the Convention”, and in particular its article 2 protecting the “right to life”, unanimously considered the 17 judges of the Grand Chamber of the ECHR, its highest instance.
The court, the judicial arm of the Council of Europe based in Strasbourg, was seized in 2016 by an Afghan. Her two sons were killed in a 2009 NATO bombing near Kunduz, Afghanistan, after two tankers were captured by Taliban fighters.
This bombardment, which killed several people, both insurgents and civilians, had been ordered by a colonel of the German forces, members of the International Security Assistance Force dependent on NATO.
Convinced that there were no civilians
“The Attorney General at the Federal Court of Justice (German, editor’s note) considered that Colonel K.’s criminal responsibility was not engaged mainly because he considered that, when he ordered the air strike, the colonel was convinced that no civilian was present on the sandbank, “recalls the ECHR in a press release.
The German Parliament had also set up a commission of inquiry to determine whether this airstrike was in accordance with the mandate given to the German armed forces. This offered “to the public the possibility of exercising an important right of scrutiny on the matter”.
“The Court considers that the circumstances of the airstrike which killed the applicant’s two sons, and in particular the decision-making process and the verification of the target which resulted in the order to initiate the strike were established from reliably after a thorough examination aimed at determining the lawfulness of the use of lethal force “, according to the ECHR.
Although “disappointed” by this judgment, the applicant’s lawyer, Me Wolfgang Kaleck, nevertheless recognized “some notable aspects”, starting with the fact that it was recognized that the European Convention on Human Rights applied in such cases.
This means that military officials deciding such strikes can “then be held legally responsible,” the lawyer said at an online press conference. He is also secretary general of the European Center for Constitutional and Human Rights, an NGO based in Berlin.
Wolfgang Kaleck regretted that Germany did not officially apologize for this airstrike, the applicant having hoped that “his human dignity will be recognized”.