An air strike ordered by German troops on two fuel trucks in Afghanistan one year ago killed more than 140 people. Law expert Gerd Hankel told DW that Germany has learned nothing from the attack's legal fallout.
The 2009 strike raised questions about the German mission in Afghanistan
On September 4, 2009, German Col. Georg Klein gave the order for an air strike in Afghanistan on two tankers that had been hijacked by the Taliban. More than 140 people were killed, many of them civilians. In the ensuing investigation, German prosecutors dropped proceedings against Klein, finding that neither he nor any of the other officers were in a position to know that civilians were present at the time of the attack.
Gerd Hankel from the Hamburg Institute for Social Research concentrates on the area of war crimes and international criminal law. He talked to Deutsche Welle about the legal dimension of the attack, which has become known as the Kunduz Affair.
DW: What makes determining the legality of this case so hard?
Gerd Hankel: It is very hard in a case like this to identify individual criminal responsibility; that is, to make it clear that Col. Klein knew before the strike that a large number of civilians were likely to be killed.
You mentioned criminal responsibility. Do you think a crime was committed?
What has been examined is whether a war crime, as defined by international criminal law, was committed. That presumes that the perpetrator was sure the military goal was greater importance than the deaths in the civilian population. He has to have known that. Showing this, which cannot be verified, failed from the very beginning. Additionally, there is the possibility of looking at Col. Klein's conduct in terms of regular German law to see if it was murder. Or manslaughter. Or involuntary manslaughter. Federal prosecutors looked at this and decided that he could not be accused of any wrongdoing.
Colonel Klein was cleared of any wrongdoing
The prosecutors dropped the case against Klein and the military also decided not to press charges against him. Looking at the bigger picture, what went wrong a year ago in Kunduz?
What went wrong is that Col. Klein should have warned the people who were near the tankers and didn't - even when the US pilots offered to do it with a so-called "show of force." One can say with good reason that he should have warned them before the strike. But it can also be seen - as it has been by prosecutors - that is impossible to give advance warning if the point is to kill as many opponents as possible. As insufferable as the thought is, his actions were within the framework of the law.
It is almost as if we have only just realized that war means killing people. Could we prohibit soldiers to kill in war?
Yes, there are a whole series of standards which prohibit just that - for example when it comes to civilians. Members of the civilian population may not be killed unless they are directly taking part in the fighting. But so long as they do not, we cannot kill civilians.
However, soldiers are also trained to kill people in war. Is this training wrong? Are they not being sensitive enough?
The problem is that people gradually lose a sense of what is and is not allowed. Then decisions that require a broad interpretation of the rules of law come to be made, as was the case with Col. Klein.
It has not really been strictly defined by politicians what we are actually doing in Afghanistan. Is it an "armed conflict" or is it war?
Two tankers were hit by US jets, killing 142 people
That is a serious problem. In my opinion, current conventional law allows for too much violence in a humanitarian mission - which is what we have in Afghanistan. This violence is counter-productive and does not help a society live at peace. We can clearly see this from the American experience in Iraq and now what the allied forces are experiencing in Afghanistan.
Do there need to be better guidelines for soldiers?
Certainly, clear guidelines would not be a bad thing. But on the other hand, it is very difficult to behave appropriately in certain situations, because often decisions have to be taken very quickly. In Germany, this discussion has resulted in an increasing radicalization of what can be done. There were engagement guidelines that forced soldiers into a somewhat passive role - which were ridiculed by the international community and other foreign troops in Afghanistan. I think Col. Klein gave his orders with a certain understanding of these rules. He certainly also wanted to show that, "German soldiers are not toy soldiers, we can do things too!"
A year has gone. Have lessons been learned?
As it stands, no I don't think any lessons have been learned. There are a whole series of commands stating that the civilian population has to be protected, that attacks have to take into account that there should be no collateral damage. But there have been no mandatory rules, and that's a major letdown. That means that you can willingly take a step back, but you always have the option of implementing the old rules and using unlimited amounts of violence.
Interview: Joerg Brunsmann/cb
Editor: Sean Sinico