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German not liable for 2009 airstrike

October 6, 2016

Germany's Federal Court of Justice has ruled that the state is not liable for overseas military operations. The claim had been brought by families of victims of a 2009 airstrike that killed more than 100 civilians.

Bundesgerichtshof BGH
Image: picture-alliance/dpa

Germany's top criminal and civil court, the Bundesgerichtshof, on Thursday ruled that the state need not compensate relatives of the victims of a 2009 airstrike in Afghanistan called in by a German general.

The strike, against an oil tanker believed to have fallen into insurgent hands, killed around 100 civilians who had gathered around the truck trying to siphon off fuel. US air support carried out the strike on the German commander's orders; German planes did not carry out air attacks over Afghanistan because of strict rules governing military engagement since the end of World War II. 

The court also found that the state cannot be held liable for instances of dereliction of duty by soldiers serving on foreign missions.

Two survivors of the airstrike had launched legal proceedings against the German state, claiming a combined total of 90,000 euros ($100,630) in compensation. Because international law only grants compensation between states and not individuals, the prosecution accused the German colonel who ordered the attack, Georg Klein, of official misconduct.

By law, German civil servants or their employer are liable to pay damages to victims in the event of "willful or negligent" acts that cause harm. However, the presiding judge Ulrich Hermann ruled that "the actions of civil servants" could not "be equated with the actions of a soldier in a combat situation".

The court also ruled that after "exhausting all available intelligence," Klein could not have known that civilians were in the targeted area. This decision reflects an earlier military ruling that reached the same finding.

The prosecution's lawyer, Karim Popal, had said before the ruling that, should the court reject the compensation claim, he would appeal in the European Court of Human Rights in Strasbourg. One of the claimants, Abdul Hannan, lost both his sons in the attack. The other, Qureisha Rauf, lost her husband.

Immediately following the 2009 attack, the German government voluntarily paid out $5,000 to each of the victims' families.

Flash-Galerie Bundeswehr-Einsätze 2010
Around 100 people, mainly civilians, were killed in airstrikes on a tanker ordered by German forces.Image: AP

The attack

The Kunduz airstrike is probably the most notorious moment of Germany's decade in occupied Afghanistan. In September 2009, responding to a call made by Klein, an American fighter jet struck two fuel tankers in the northern Afghan city of Kunduz.

The tankers had been captured by the Taliban. Klein claimed that he feared they could be used as improvised explosives on the nearby German base. However, the airstrikes killed around 100 people, mainly civilians - who had flocked to the tanker trying to siphon off fuel.

The prosecution claimed that Klein must have known there were scores of civilians around the tanker and should not have ordered the attack. While the courts had already rejected the accusations, federal prosecutors are still investigating a possible private case against him. Previous efforts to charge him with murder failed in 2011.  In 2013, he was promoted from colonel to general. 

dm/msh (dpa, AFP, Reuters)