Information Note on the Court’s case-law 248
Hanan v. Germany [GC] – 4871/16
Judgment 16.2.2021 [GC]
Effective investigation into deaths of civilians due to an airstrike in Afghanistan ordered by a German Colonel acting in a multinational military operation mandated by the United Nations Security Council: no violation
Jurisdiction of States
Jurisdictional link engaging the obligation to investigate civilian deaths due to an airstrike occurring during active hostilities in extraterritorial armed conflict
Facts – On 4 September 2009 a German Colonel K., acting in an International Security Assistance Force (ISAF) under a mandate given by the United Nations (UN) Security Council under Chapter VII of the UN Charter, ordered an airstrike against two fuel tankers which had been hijacked by Taliban insurgents in Afghanistan, killing and injuring both insurgents and civilians. A German prosecutor began and then discontinued an investigation based on a lack of grounds for the criminal liability of Colonel K. The applicant complained under Article 2 about a lack of an effective investigation into the airstrike that had killed his two sons and that he had not had an effective remedy to challenge the decision to discontinue the investigation.
Noting that the applicant had complained exclusively under the procedural limb of Article 2, the Grand Chamber examined the existence of a “jurisdictional link” for the purposes of Article 1 on the basis of the principles set out in its judgment Güzelyurtlu and Others v. Cyprus and Turkey [GC].
The principle that the institution of a domestic criminal investigation or proceedings concerning deaths which had occurred outside the jurisdiction ratione loci of that State, not within the exercise of its extraterritorial jurisdiction, was in itself sufficient to establish a jurisdictional link between that State and the victim’s relatives who brought proceedings before the Court, did not apply to the present scenario. The deaths investigated by the German prosecution authorities had occurred in the context of an extraterritorial military operation within the framework of a mandate given by a resolution of the United Nations (UN) Security Council acting under Chapter VII of the UN Charter, outside the territory of the Contracting States to the Convention. Establishing a jurisdictional link merely on the basis of the institution of an investigation might have a chilling effect on instituting domestic investigations at the domestic level into deaths occurring in extraterritorial military operations and might result in an inconsistent application of the Convention in respect of Contracting States participating in the same operation. This would also excessively broaden the scope of application of the Convention.
However, in the Güzelyurtlu and Others case the Court had considered that “special features”, which it had not been defined in abstracto, might establish a jurisdictional link bringing the procedural obligation imposed by Article 2 into effect, even in the absence of an investigation or proceedings having been instituted in a Contracting State in respect of a death which had occurred outside its jurisdiction. This also applied in respect of extra-territorial situations outside the legal space of the Convention as well as in respect of events occurring during the active hostilities phase of an armed conflict (Georgia v. Russia (II) [GC]).
In the present case, firstly, Germany had been obliged under customary international humanitarian law (IHL) to investigate the airstrike at issue, as it had concerned the individual criminal responsibility of members of the German armed forces for a potential war crime. This reflected the gravity of the alleged offence.
Secondly, the Afghan authorities had been, for legal reasons, prevented from instituting themselves a criminal investigation. By virtue of the International Security Assistance Force (ISAF) Status of Forces Agreement, the troop-contributing States had retained exclusive jurisdiction over the personnel they had contributed to ISAF in respect of any criminal or disciplinary offences on the territory of Afghanistan.
Thirdly, the German prosecution authorities had also been obliged under domestic law, related to Germany’s ratification of the Rome Statute of the International Criminal Court, to investigate any liability of German nationals for, inter alia, war crimes or wrongful deaths inflicted abroad by members of their armed forces, as in the majority of Contracting States participating in military deployments overseas.
In sum, the fact that Germany had retained exclusive jurisdiction over its troops with respect to serious crimes which, moreover, it had been obliged to investigate under international and domestic law constituted “special features” which in their combination trigger the existence of a jurisdictional link in relation to the procedural obligation to investigate under Article 2.
Even if the Court did not have to examine whether there was also a jurisdictional link in relation to any substantive obligation under Article 2 because it had not been invoked by the applicant, the Court clarified that the mere establishment of a jurisdictional link in relation to the procedural obligation under Article 2 did not mean that the substantive act felt within the jurisdiction of the Contracting State or that the said act was attributable to that State.
Conclusion: within the jurisdiction of Germany.
Article 2 (procedural aspect):
In the domestic proceedings the situation in which the airstrike occurred had been qualified as a non-international armed conflict for the purposes of IHL. There was no substantive normative conflict in respect of the requirements of an effective investigation between the rules of IHL applicable to the present case and those under the Convention. The Court could therefore confine itself to examining the facts based on its case-law under Article 2, without having to address whether in the present case the requirements allowing it to take account of the context and rules of IHL when interpreting and applying the Convention in the absence of a formal derogation under Article 15 of the Convention were met.
The challenges and constraints for the investigation authorities stemming from the fact that the deaths had occurred in active hostilities in an extraterritorial armed conflict had pertained to the investigation as a whole and had continued to influence the feasibility of the investigative measures that could be undertaken. Accordingly, the standards applied to the investigation conducted by the civilian prosecution authorities in Germany were to be guided by those established in respect of investigations into deaths in extraterritorial armed conflict, as set out in Al-Skeini and Others v. the United Kingdom [GC] and Jaloud v. the Netherlands [GC].
(a) Adequacy of the investigation:
The cause of the death of the applicant’s sons, and the person(s) responsible for it, had been known from the start of the criminal investigation.
The Federal Prosecutor General had determined that Colonel K. had not incurred criminal liability mainly because he had been convinced, at the time of ordering the airstrike, that no civilians had been present.
Having no legal powers to undertake investigative measures in Afghanistan, the Federal Prosecutor General had corroborated Colonel K.’s subjective assessment by among others objective circumstances and evidence which could not be tampered with, like audio recordings of the relevant radio traffic and thermal images from infrared cameras, which had been immediately secured.
Under normal circumstances the establishment of the precise number and status of the victims of the use of lethal force was an essential element of any proper investigation of incidents involving a high number of casualties. In the present case, the fact that the authorities had not established the precise number and status of the victims of the airstrike had not amounted to a deficiency capable of questioning compliance by the investigation with Convention standards.
In view of the foregoing, the facts surrounding the airstrike, including the decision-making and target verification process leading up to Colonel K’s order, had been established in a thorough and reliable manner in order to determine the legality of the use of lethal force.
Moreover, given that the Federal Constitutional Court, which had expressly found that the Federal Prosecutor General’s investigation had complied with the standards of Article 2, was able to set aside a decision to discontinue a criminal investigation, the applicant had at his disposal a remedy to challenge the effectiveness of the investigation.
(b) Promptness, reasonable expedition and independence of the investigation:
The arrival of members of the German military contingent to perform the initial on-site reconnaissance occurred in the active hostilities phase of an extraterritorial armed conflict. Accordingly, they could not realistically have been expected to perform it more promptly. While it would have been preferable if the initial on-site assessment had not been conducted exclusively by German military under Colonel K.’s command, the investigation team from the German military police had not yet arrived at the time the initial assessment had been conducted. Ensuring the latter’s participation would thus have resulted in a delay, albeit one of a minor nature, illustrating the inter-relatedness of promptness and independence.
Considering that the procedural duty under Article 2 must be applied realistically and that the German civilian prosecution authorities had not had legal powers to undertake investigative measures in Afghanistan, the fact that the German military police had been under the overall command of the German military contingent had not affected their independence to the point of impairing the quality of their investigations.
By contrast, Colonel K. should not have been involved in investigative steps in Afghanistan given that the investigation had concerned his own responsibility in connection with ordering the airstrike. Nevertheless, this had not rendered the investigation ineffective. The Federal Prosecutor General’s determination that Colonel K. had not incurred criminal liability had been primarily based on the finding in respect of Colonel K.’s mens rea at the time of ordering the airstrike, which had been corroborated by evidence which could not be tampered with and, which had been immediately secured.
In these circumstances, there had been, realistically, no risk that evidence decisive for the determination of Colonel K.’s criminal liability could become contaminated and unreliable This marked a significant difference between the present case and those of Jaloud (where it had remained unclear who had fired the shots which had killed the applicant’s son), and Al-Skeini and Others (where relevant circumstances of the deaths of the relatives of some of the first five applicants had remained uncertain).
Moreover, the competent German authorities had begun investigating into the airstrike, including with a view to establishing any criminal liability of those involved, promptly after the possibility of civilian deaths had become known.
The fact that the investigation had remained at the preliminary investigation stage for about six months until the opening of the formal criminal investigation, while regrettable, had not affected the effectiveness of the investigation.
(c) Participation of the next-of-kin and public scrutiny:
The applicant had filed, on April 2010, a criminal complaint regarding the death of his two sons and had requested access to the investigation file. The Federal Prosecutor General had closed the investigation four days later, without having heard the applicant or granting his lawyer access to the file. This had not rendered the investigation deficient because the applicant and his counsel would not have been in a position to provide additional insights relevant to the determination of Colonel K.’s criminal liability.
Furthermore, the Federal Prosecutor General had reviewed the applicant’s subsequent submissions and had rejected them as ill-founded. Had the applicant’s statements contained new evidence or led to the existing evidence being viewed in a different light, this could have led to the reopening of the investigation. In such case, the applicant would have had the opportunity to influence the investigation, even though he had been not heard prior to the discontinuation decision.
There had been no undue restrictions or delay as regards the applicant’s access to the investigation file. Initially, his representative had requested access to the file on behalf of many individuals, whose victim status had required a certain amount of time to verify. Once he had restricted the request to the applicant, access to the unclassified parts of the file had been granted two days later. The investigative material had contained sensitive information concerning a military operation in an ongoing armed conflict, and it could not be regarded as an automatic requirement under Article 2 that a deceased victim’s surviving next-of-kin be granted access to the ongoing investigation.
It had been reasonable that the discontinuation decision of April 2010 had not been published or served on injured parties right away, but had been redacted first, given that it had contained classified military information. The key aspects of the decision had been nonetheless published in a press release. Two days after the redacted version had been finalised, on October 2010, it had been served on the applicant’s legal representative. Importantly, the one-month time-limit for filing a motion seeking to compel public charges had started to run from the date of service of the discontinuation decision. Thus, the delay in serving the redacted version of the discontinuation decision had not negatively affected the applicant’s ability to challenge it.
Lastly, the investigation into the airstrike by the parliamentary commission of inquiry had ensured a high level of public scrutiny.
(d) In sum, having regard to the circumstances of the case, the investigation performed by the German authorities had been effective.
Conclusion: no violation (unanimously).
(See also Banković and Others v. Belgium and Others (dec.) [GC], 52207/99, 12 December 2001; Behrami and Behrami v. France and Saramati v. France, Germany and Norway (dec.) [GC], 71412/01 and 78166/01, 2 May 2007, Legal summary; Al-Skeini and Others v. the United Kingdom [GC], 55721/07, 7 July 2011, Legal summary; Jaloud v. the Netherlands [GC], 47708/08, 28 November 2014, Legal summary; Güzelyurtlu and Others v. Cyprus and Turkey [GC], 36925/07, 29 January 2019, Legal summary; Georgia v. Russia (II) [GC], 38263/08, 21 January 2021, Legal summary)