Top court rules Germany not liable over Kunduz airstrike

Two Afghan plaintiffs seeking recompense for family lost in a 2009 NATO airstrike near a German base have failed to persuade Germany's (BVerfG) constitutional court to quash a 2016 lower court decision.

Instead, the Constitutional Court declined to decide, saying it could not fault a 2016 decision made by Germany's most senior civil court, the Federal Court of Justice (BGH), that the German state was not liable for deaths in that airstrike traced to a German military officer assigned to the multinational mission ISAF.

Fundamentally, only the plaintiffs' home country Afghanistan could claim damages from Germany for alleged acts in violation of international law, maintained Germany's top court.

Seeking damages was an Afghan father of two children killed and a woman who lost her husband, with monetary value put at €90,000 ($109,000). 

On September 3, 2009, German colonel, Georg Klein, requested the NATO airstrike. Two US fighter jets bombed two Taliban-hijacked fuel tanker trucks stuck in river sands, near a German military base he then commanded. 

Some 100 people were killed, including many civilians who were there while fuel was siphoned off.

With the help of German advocates, Afghan survivors and family members of those killed sought compensation before various German courts and more recently at the European Court of Human Rights in Strasbourg.

Question of international and German law 

In its judgment on Wednesday, Germany's constitutional court based in Karlsruhe said the 2016 BGH decision stood in rejecting the plaintiffs' bid to link international law to legal recourse specified by Article 34 of Germany's Basic Law if a public official acts negligently.

"There is no general rule of international law under which the individual in the event of a violation of international humanitarian law would also be entitled to claims for damages or compensation against the responsible state," asserted the constitutional court's adjudicating second chamber.

Individual claims for damages or compensation were not predicated by international conventions, such as the Supplementary Protocol to the 1949 Geneva Conventions on International Armed Conflicts, said the Karlsruhe judges.

They added, it was "open" to [German] lawmakers to exclude future provision of public liability compensation in cases of human rights violations.

Plaintiffs see European human rights breaches

Plaintiffs' lawyers, addressing the Strasbourg human rights court early this year, asserted the German colonel issued a string of "binding instructions" for the airstrike, without any UN control, thereby breaching the European Convention on Human Rights.

"Germany is responsible for the strike that killed the children of the applicant," the plaintiff's lawyer Wolfgang Kaleck told the Strasbourg court. "And, Germany failed to properly investigate the strike and the right-to-life violations."

Kaleck is general secretary of the European Center for Constitutional and Human Rights (ECCHR) based in Berlin.

ipj/rc (Reuters, AFP, AP)