This chapter analyzes the proceedings and strategic litigation before German courts and the ECtHR after an air strike ordered by the German military in Kunduz, Afghanistan with numerous civilian casualties. Besides its human and fundamental rights aspects, the case also included criminal allegations and involved administrative proceedings. IHL arguments played a significant role. The case concerned criminal responsibility, non-compliance with IHL rules protecting civilians and claims attempting to compel public charges. It also dealt with compensation claims based on international law and domestic law as well as the extraterritorial applicationExtraterritorial Application of fundamental and human rights in armed operations abroad. The case also concerned defense and foreign policy. All these aspects are analyzed to determine the contribution of strategic litigation to enforce IHL compliance based on the research findings of the previous chapters. First, the facts of the case are examined. Judicial action in response to the air strike took three different forms: An administrative lawsuit, prosecution by German authorities and proceedings before German criminal courts, the Constitutional Court and the ECtHR as well as compensation proceedings before German civil courts and the Constitutional Court. These proceedings are thoroughly analyzed. Next, there is an assessment of litigation possibilities investigating avenues for victims of air strikes and an examination of the relevant legal questions of the case. Afterwards, the case’s aspects of strategic litigation and similar strategic cases are examined. Finally, the impact of the case proceedings will be discussed, and conclusions drawn.

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Case Study: The Air Strike Ordered by the German Military in Kunduz

  • Vera Strobel

摘要

This chapter analyzes the proceedings and strategic litigation before German courts and the ECtHR after an air strike ordered by the German military in Kunduz, Afghanistan with numerous civilian casualties. Besides its human and fundamental rights aspects, the case also included criminal allegations and involved administrative proceedings. IHL arguments played a significant role. The case concerned criminal responsibility, non-compliance with IHL rules protecting civilians and claims attempting to compel public charges. It also dealt with compensation claims based on international law and domestic law as well as the extraterritorial applicationExtraterritorial Application of fundamental and human rights in armed operations abroad. The case also concerned defense and foreign policy. All these aspects are analyzed to determine the contribution of strategic litigation to enforce IHL compliance based on the research findings of the previous chapters. First, the facts of the case are examined. Judicial action in response to the air strike took three different forms: An administrative lawsuit, prosecution by German authorities and proceedings before German criminal courts, the Constitutional Court and the ECtHR as well as compensation proceedings before German civil courts and the Constitutional Court. These proceedings are thoroughly analyzed. Next, there is an assessment of litigation possibilities investigating avenues for victims of air strikes and an examination of the relevant legal questions of the case. Afterwards, the case’s aspects of strategic litigation and similar strategic cases are examined. Finally, the impact of the case proceedings will be discussed, and conclusions drawn.