A district court in the former West German capital Bonn has rejected a case in connection with a lethal airstrike ordered by the commander of the German PRT in Kunduz province four years ago. Families of some of the dozens of victims and a German lawyer of Afghan origin had wanted to sue the German government for compensation, arguing that Colonel (now General) Georg Klein had broken official regulations and therefore the German government was liable for the deaths and injuries caused. If the claimants had been successful, it would have created a precedent and Berlin – and possibly other governments – could have faced similar claims in other cases. The court, however, ruled, on 11 December 2013, that Colonel Klein had not violated any existing regulations to protect civilians from being harmed. It also agreed with the view of the defendant – the German Defence Ministry – that Klein, in his position as PRT commander, was under the command of the NATO-led ISAF mission and not acting solely on behalf of Berlin. The claimants’ lawyer said they intend to appeal. Thomas Ruttig reports (with input from Kate Clark).
On the evening of 3 September 2009, Taleban fighters hijacked two tanker trucks as they drove south through Kunduz province. The trucks were owned by an Afghan private company and contracted to deliver airplane fuel to the ISAF forces. When the two hijacked lorries then got stuck crossing a shallow riverbed at the border between Aliabad and Chahrdara districts, away from the main road, in the middle of a night in Ramadan, the Taleban mobilised the inhabitants of nearby villages more or less under their control to pump the fuel out and get the lorries going again. A large number took the offer up. Meanwhile, with the help of ISAF air reconnaissance, the immobilised trucks were located. This was done by a B1 bomber which had cameras on board so strong they could even identify the weapons carried by the hijackers. But this plane left the area and Colonel Klein called in two US fighter jets which had automatic infrared cameras that portrayed people on the ground only as black spots. The two pilots were eventually ordered by Klein to carry out the airstrike in the early morning hours of 4 September 2009.
The number of people and specifically the number of civilians who were not ‘participating in hostilities’ killed in the strike is unclear to this day. It differs depending on the investigation report, some of which are published, while others remain classified. The still classified report by the then ISAF commander, General Stanley McChrystal – parts of which are cited in the report of the investigation committee of the German parliament, the Bundestag, that was published on 25 October 2011 (in German here; the committee started working in December 2009) – says “between 17 and 142 people” were killed. It does not seem to refer to killed civilians directly, but quotes local elders saying that possibly 30 to 40 civilians were killed. A report authored by a German military policeman who conducted an investigation at the location of the airstrike avoids stating whether there were what he called “non-involved civilians” among the dead, but this choice of words indicates he did not exclude the possibility. (This report, called “Feldjäger-Bericht”, was originally classified, then published by Wikileaks, here, and later attached to the German parliament’s own report, here, as “document 67”). The lawyers who brought the case before the Bonn court claim 137 people died, “undeniably many dozens of civilians“. An Afghan investigation commission, sent by President Hamed Karzai and led by police general Mirza Muhammad Yarmand, that was in the area between 4 and 10 September 2009, stated that 69 Taleban and 30 local residents – a term that leaves it open whether they were perceived as non-involved civilians or civilians that were supporting the Taleban in an operation – were killed. (A German translation of this report is attached to the Bundestag report.) An Afghan human rights group, Afghanistan Rights Monitor, which also conducted interviews with victims in the area, said on 7 September that 60 to 70 civilians were killed. Finally, UNAMA, as stated in its 2009 Protection of Civilians report (on p 18), after its own investigation, said that 74 civilians, including many children, had been killed. One of the problems, said UNAMA, was that the fireball produced by dropping munitions on the fuel tankers incinerated many of the bodies, making their identification impossible.
However, according to probably the most extensive investigation, carried out by two Germans, Christoph Reuter, a journalist and occasional AAN author, and Marcel Mettelsiefen, a photographer, who repeatedly travelled to the region interviewing families and community members, ninety civilians “from children to old men” were killed. Reuter and Mettelsiefen published a moving book, naming the victims they had confirmed as having been killed and featuring photographs – ID documents, family photos and such – of each of the victims and their relatives. It was a powerful way to humanise the numbers of those killed and the scale of the loss to the community.
As the UNAMA Protection of Civilians report put it, “it is not disputed that some Taliban were at the site, but it should have been apparent that many civilians were also in the vicinity of the trucks.” The confirmed presence of civilians among the dead was known from other reports that were finalised within days of the airstrike. AAN also received confirmation, on 4 September 2009, that at least 15 civilians, among them three children, had been harmed when we spoke to the head of Kunduz city hospital, Humayun Khamush, over the phone. Yet, the German government took the official position on 4 September 2009 that all those killed in the airstrike had been “terrorist Taleban” and that, “according to our knowledge at present, no civilian was injured.” It stuck to this position far too long and despite the emerging evidence to the contrary. Chancellor Angela Merkel’s defence minister, Franz Josef Jung, later lost his job when he was found guilty of having held back early information from parliament and the General Prosecutor that there actually were civilian casualties.
Regardless of the official denials of any civilian casualties, the killings resulting from the airstrike triggered an automatic investigation by the inspector general of the German armed forces, the Bundeswehr. After four months, he concluded that the evidence was insufficient to court martial Colonel Klein. Separate criminal proceedings against Klein taken up by the German Federal Prosecutor’s Office were halted in April 2010. It found that Klein had considered the presence of civilians in the vicinity of the trucks unlikely, so had acted properly in accordance to “the circumstances as they were known to him” and had neither broken international nor German law. (As will be discussed below, the legal question would look at the basis of his belief and whether he had taken ‘all feasible precautions’ to ensure it was accurate.)
In June 2010, the families of 102 victims received payments of USD 5,000 each, declared to be “winterisation support“ by the German government, apparently to avoid any statement of responsibility. The German defence ministry, the defendant in the case in Berlin, has also always maintained that Colonel Klein acted on behalf of the NATO mission in Afghanistan and not solely on behalf of Berlin.
There is no doubt civilians were among those killed on 4 September 2009. This is not enough in itself, though, for the laws of armed conflict, the body of law based on the Geneva Conventions, to have been breached. Rather, a court would have to prove that military forces had not distinguished between civilians and those engaged in hostilities; and/or had targeted civilians or civilian objects; and/or had not taken all feasible precautions to avoid, and in any event minimise, incidental loss of life, injury to civilians and damage to civilian objects; and/or, if an attack on a military target had been expected to lead to civilian casualties, it had not ensured civilian losses were proportional to the military advantage gained. The key principles in the Kunduz case appear to be distinction and precaution.(1)
As well as the laws of armed conflict, ISAF forces were also bound by tactical directives, including one on the use of force issued just two months before the Kunduz strike by ISAF commander, General Stanley McChrystal, covering ISAF and the mainly US special forces of Operation Enduring Freedom. The directive was aimed specifically at preventing civilian casualties, including through air strikes, and was issued after a number of incidents where – mainly American – ISAF troops had killed civilians and caused significant outrage in the Afghan public and government. In the largest incident, up to 117 villagers were killed in Farah province in May of that year. While the details of the new rules were not published,(2) the directive warned that “excessive use of force” results in an “alienated population”; it ordered commanders to “scrutinise and limit the use of force like close air support against… locations likely to produce civilian casualties.”
ISAF rules of engagement at that time, according to the in-depth report on the Kunduz strike by Der Spiegel (cited earlier), which had access to the NATO investigation report, allowed air support in limited circumstances: when there were ‘troops in contact’ with the enemy in the area, ie troops were engaged in battle with the enemy, or when “time sensitive targets” could be attacked or “specific persons or objects would be eliminated.” The first condition would be in self-defence when air power has to be used to save friendly troops in ‘imminent danger’. The second condition points to a decision having to be made to strike a target quickly before it is lost, knowing that it may cause damage in the future. Often this is used in relation to a targeted killing – and here the third condition comes into play: the elimination of a specific person or object. Targeted killings can occur when a person has been placed on the Joint Prioritized Effects List (JPEL) and can then be legally killed – or captured – without having to be engaged in hostilities at the time of the attack; this tactic is aimed at reducing the ranks of insurgent leaders. (For a broader discussion of the JPEL and targeted killing, see two major reports by AAN, here and here.
Incidentally, whether or not the aim of an air strike is to defend troops in contact with the enemy or a targeted killing, the same laws of war (also known as International Humanitarian Law or IHL) apply. The former United Nations Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Philip Alston summed up in a report in 2010 what the law means in relation to targeted killings when he was still in office:
Under the rules of IHL, targeted killing is only lawful when the target is a ‘combatant’ or ‘fighter’ or, in the case of a civilian, only for such time as the person ‘directly participates in hostilities’. In addition, the killing must be militarily necessary, the use of force must be proportionate so that any anticipated military advantage is considered in light of the expected harm to civilians in the vicinity, and everything feasible must be done to prevent mistakes and minimize harm to civilians. These standards apply regardless of whether the armed conflict is between States (an international armed conflict) or between a State and a non-state armed group (non-international armed conflict), including alleged terrorists. Reprisal or punitive attacks on civilians are prohibited.
The Kunduz air strike prompts various questions: on what basis did Klein order the strike? Did he attempt to distinguish between civilians and those engaging in hostilities among the crowd of people around the fuel tankers? Making a mistake or being ignorant of the presence of civilians on the ground would not be sufficient defence here; rather, he would have to show the precautions he took to ensure civilians were not present before ordering the strike.
The Bonn court obviously argued that he did, as had before the inspector general of the Bundeswehr and the German Federal Prosecutor. Their finding that Klein had acted properly and in accordance to “the circumstances as they were known to him” however do not look fully waterproof.
One of the most astonishing parts of “the incident at coordinate 42S VF 8934 5219”, as it is called so technically and euphemistically in some German documents, is that Colonel Klein’s conclusion that no civilians were on the ground was based on information from a single informant. Although the source had been rated with the second-highest degree of reliability, relying on a single source is not considered sufficient even for a simple journalistic report, let alone for an as fateful decision as a strike intended to kill dozens of people. Moreover, the informant was not a direct eyewitness of how events were developing at the location where the two hijacked tankers were stuck but was only in phone contact with people there. It also appears that the informant might not have reported to Klein directly, but through someone from German intelligence (and maybe using an interpreter, additionally). There were, in fact, “five people between the source and the commander” according to the protocol of the night of the airstrike in Klein’s command centre.
There were several moments in which Colonel Klein could have done things differently on that fateful night. First, according to the investigation reports, the US pilots offered five times to do ‘a show of force’, ie a low-altitude overflight (the cockpit protocol can be found here) aimed at dispersing the crowd around the tankers. This would appear to indicate the pilots were not comfortable about the strike and were not convinced the gathered people were all fighters. One pilot did tell the other, “I really want to drop on [the bombs], but just something doesn’t… something doesn’t feel right.” However, this conversation was not audible for Klein and his assistants. On the other hand, the pilots did ask Colonel Klein for instructions on whether he wanted to destroy the tankers or attack the people around them. He said the latter. According to Frankfurter Allgemeine, this was confirmed in the classified ISAF report.
Klein also changed his argument as to why he ordered the airstrike, it seems, in order to conform with the ISAF tactical directive, but, in so doing, mixed his stated aims up. Colonel Klein told the pilots there were ‘troops in contact’ (ie the strike was needed for self-defence). This was wrong, at least according to the information contained in the publicly available investigation reports. Klein quickly dropped this line.
Klein then argued that the targets – the two tankers – were ‘time sensitive’ targets which created an ‘imminent danger’ for German troops. The tanker, he said, could have been used as a moving firebomb (in this case, self-defence would have justified the strike); this argument was repeated in an answer by the German ISAF commander in Mazar-e Sharif to a list of questions put by the ministry of defence in Berlin, here). According to the Spiegel report quoted above, an informant had reported in August 2009 that the Taleban were planning an ‘complex attack’. They “were talking about overrunning the German camp… there were plans to crash through the first barrier using a truck loaded with explosives and driven by a suicide bomber.” According to the Bundeswehr general inspector, there had been six cases already in 2009 in which lorries or tankers had been used for car bomb attacks.
In Kunduz, however, it was stretching the situation way too far to describe the PRT as being in ‘imminent danger’. As Klein knew, the trucks were still stuck in the river. With the US jets circling overhead and their cameras following every move on the ground, he would have noticed immediately if the trucks had started moving again and could have ordered an airstrike when and if the PRT did come in danger. Although the trucks were only seven kilometres away from the PRT site, it would have taken them almost an hour to get there, given the bad, unpaved roads in the area. Apart from that, the tankers were facing away from the PRT which did not indicate a planned direct and immediate attack on the base. When this author, who was invited to testify before the court in an earlier session on 30 October 2013 as a country expert, mentioned this fact – which is clearly stated in the investigations report – the judges, at least, and even the victims’ lawyers, seemed to be hearing this for the first time.
Klein also had information that four local Taleban commanders and sub-commanders known by name were involved in the hijacking and at least some of them appear to have been on the JPEL. They would be the “specific targets” he referred to. (Later it was found these men had actually moved away from the site of the airstrike and had survived.)
Reviewing Klein’s comments, it can be said that, as far as we know, there were no troops in contact with the enemy who needed to be defended by an air strike. The PRT was also not in ‘imminent danger’. Klein might well have believed men named on the JPEL (and therefore legal targets) were on the ground, or other unknown Taleban were engaging or had engaged in hostilities – they had hijacked the fuel trucks – and were therefore legal targets. However, for the strike to have been legal, he would still have had to have taken precautions to ensure there were no civilians among those clustered round the fuel tankers (or if there were – and he did not use this argument – that he determined the military benefit of the strike would outweigh the ‘collateral damage’). One single source who was not at the scene appears to have been his evidentiary basis for believing there were no civilians. This is arguably insufficient. There is also no evidence that he tried to distinguish between those participating in hostilities and civilians potentially also at the scene whom he had a duty to protect – ie those villagers who came to pick up some of the fuel. On the face of it, then, his decision to order an air strike appears to have been a violation of the principles of distinction and precaution, as well as ISAF’s tactical directive to “scrutinise and limit the use of force like close air support against… locations likely to produce civilian casualties.”
Why the Strike?
It is worth mentioning the possible psychological disposition of Colonel Klein and his assistants who sat in the same room and numbered at least one air controller and one intelligence official (more likely there were four or five, the exact number was never confirmed) and how that might have played a role in their response to the hijacking of the tankers. Provincial officials and other NATO commanders had castigated the Germans for having been too soft vis-à-vis the Kunduz Taleban for a long time, and ridiculed them for serving in ‘Bad Kunduz’, German for ‘Kunduz Spa’ implying the PRT was a health resort, and for having a ‘two can rule’ which allowed German soldiers to drink two cans of beer per day while the US and some other national contingents were ordered to remain ‘dry’. Particularly provincial governor Muhammad Omar was critical in pushing Klein for a more ‘robust’ German approach to the Taleban, after his brother had been killed by insurgents. (Omar himself was assassinated a year later, in October 2010)
Significantly, the Germans had suffered an unprecedented number of casualties in Kunduz in the five months before the tanker incident (four dead and 20 injured) and Klein may have wanted to show toughness. Last but not least, as Der Spiegel wrote, Germany was less than four weeks away from federal elections, the race was tight and – with a majority of the public opinion against the military mission in Afghanistan – an incident of German mass casualties caused by a Taleban attack in that period could have cost the governing coalition its power. On 27 September 2009, Chancellor Merkel’s coalition won by the slightest of margins.
Taleban, supporters, sympathisers…
The official German position was also clearly, although indirectly, bolstered by the statements of Afghan officials who, in contrast to other cases, appeared to care astonishingly little about the civilian casualties in this one. Provincial Council chairman, Mohammadullah Wardak, was quoted as telling General McChrystal who visited the site on the day after the incident, “If we do three more operations like was done the other night, stability will come to Kunduz.” Also General Mirza Muhammad Yarmand, who had led the Afghan government’s investigation of the incident, was not ready to properly distinguish between armed Taleban fighters and unarmed civilians even if they sympathise with the Taleban. Spiegel quoted him as saying apologetically, “Most of them [the victims? the people in the district where the incident happened?] are Taliban supporters.” He said his assessment was based on information he had received from the NDS but admitted also that, in the words of Spiegel, “it isn’t easy to differentiate between who is a hardliner, who is a relative, who is a friend and who only happened to find out about the trucks. There are no clear-cut boundaries.” It also needs to be taken into consideration that the political landscape in Kunduz is heavily polarised, with many long-time and die-hard enemies of the Taleban, particularly in leading positions in the security forces, who would be content with killing Taleban sympathisers.
These sentiments were not shared by everybody, though. The organisation Afghanistan Rights Monitor (ARM), in its 7 September 2009 statement, blamed senior provincial authorities, including the governor, for hailing the incident as a strategic victory and a punishment for Taleban supporters in the district. It reminded the Afghan government of its “fundamental obligation to protect the people regardless of their political affiliations.” ARM director, Ajmal Samadi, added: “Even if all the victims were supporters of the Taleban, the fact that most of them were unarmed and were not engaged in any combat activity, does not warrant their mass killing.” Civilians have to be ‘engaged in hostilities’ to lose their protected status – sympathising with the enemy is not enough to turn them into legal targets.
Open questions in Bonn
In the light of the above, the 11 December 2013 Bonn court verdict involved a number of oddities. The court’s deliberations also seemed strangely detached from the situation in Afghanistan. A whole list of unanswered questions remains: Why was the fact that Colonel Klein’s intelligence was based on only one single and indirect source not given more weight? Why did he not allow himself the slightest doubt about the information received from that source? Why did he initially make the apparently misleading statement to the pilots that he had troops in contact with the enemy (which would have made the strike a potentially legal act of self-defence)? Were there other sources that support Klein’s version that we do not know about? And if so, why have they not been revealed? Why was the interpretation of the video footage left to the two parties in court with no neutral expert called? (The defendants representing the German defence ministry fielded a young Bundeswehr officer who had served as an air footage evaluator in Afghanistan; he would have contradicted his own superiors if he read the pictures ‘wrongly’. He didn’t; interpreting the ant-like movements of the ‘black spots’ clustered around the two tankers as “clearly militarily structured” – whatever that means – he was not asked by the court to elaborate on his criteria. Did Klein really think the Taleban would amass up to 300 fighters (the number reportedly given in the ISAF report) around two fuel tankers and let them linger there for hours – an easy target? Why is the final ISAF investigation report still classified?
The earlier conclusion by the German Bundeswehr and the General Prosecutor that Klein had not violated ISAF regulations, or German or international law, look as threadbare as the Bonn court’s ruling. There is also the curious contention that Klein, in his position as PRT commander, was under the command of the NATO-led ISAF mission and not acting solely on behalf of Berlin. This would suggest that, whatever the rights or wrongs of the case, it was not the German state’s responsibility to compensate victims. Not surprisingly, the claimants’ lawyer announced that he will appeal.
Bonn’s local newspaper, the Generalanzeiger, concluded after the 30 October 2012 hearing that “someone who knows little about [Afghanistan] and its people might arrive at the decision taken by the German commander. Someone who knows more about the country would probably have come to another conclusion”. This seems to hit the nail on the head and not only in Colonel Klein’s case. Ignorance of and the increasing distance to the people ISAF was supposed to assist by providing security to (as its full name, the International Security Assistance Force, says) have caused many a mistake in the course of the twelve years of the NATO-led intervention in Afghanistan. However, in the laws of armed conflict, making a mistake is not a legal defence. It also stands to be clarified whether the participation of one country’s armed forces in a multilateral mission like ISAF exonerates this country’s government from any responsibility in cases of wrong-doing of their own personnel sent into that mission.
(1) Jean-Marie Henckaerts and Lousie Doswald-Beck’s ICRC, Customary International Law, CUP/ICRC, Cambridge 2005 summarises the basic principles as follows:
Distinction: ‘Civilians are protected against attack, unless and for such time as they take a direct part in hostilities,’ and ‘[a]ttacks must not be directed against civilian objects’ (ICRC Study Rule 6).
Precautions in attack: ‘In the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects. All feasible precautions must be taken to avoid, and in any event minimise, incidental loss of life, injury to civilians and damage to civilian objects’ (ICRC Study, Rule 15).
Proportionality: ‘Launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive in relation to the concrete and direct military advance anticipated, is prohibited’ (ICRC Study Rule 14).’
(2) In some of the documents related to the Kunduz airstrike that were later released, or leaked, it is mentioned that there are so-called Rules of Engagement (ROEs). These ROEs are numbered and the so-called “attack ROE” 421-429 rule the conditions under which ‘close air support’ can be requested. In this document, which is called “a first legal assessment” of the Kunduz incident, it is stated that the only ROE applicable in this case was ROE 429a/b that refers to attacks on and challenge to ISAF’s ability to move freely (see the document here: http://wlstorage.net/file/de-isaf-cas-kunduz-sep09.pdf, go to: 20. DEU EinsKtgt ISAF, RB St-Offz, Mazar-e Sharif, 04.09.2009, Betreff: Erste rechtliche Bewertung Vorfall KDZ 03.09.2009)
“429A: Attack on individuals, forces or groups resisting ISAF in its mission to facilitate the lawful extension of Afghan government authority to secure and stabilize Afghanistan, by realistic and identifiable threat of force, or use of force is authorized.
429B: Attack on individuals, forces or groups challenging ISAF’s complete and unimpeded freedom of movement, by realistic and identifiable threat of force, or use of force is authorized.”
This article was last updated on 9 Mar 2020