1. On-site investigation

26. Later on that same morning, after having been informed about the airstrike, Brigadier-General V. sent an investigation team of the German military police (Feldjäger) from Masar-i-Sharif to Kunduz to support PRT Kunduz in the investigation into the airstrike.

27. At 12.13 p.m. on the same day, a team from PRT Kunduz departed for the site of the airstrike, which it reached at 12.34 p.m. No members of the team from Masar-i-Sharif, which had left from their base at 12.24 p.m. and had not yet arrived at the base of PRT Kunduz, participated in the on-site visit. The team from PRT Kunduz came across an extensively altered site, with only a few destroyed cars and no bodies. During the visit, the team, who were afforded protection by some 100 members of the Afghan security forces, came under attack, but managed to continue investigating after returning fire. After the team's return to the base at 2.23 p.m., an evaluation meeting was held from 2.45 p.m. onwards, which involved Colonel K. as well as members of the military police team deployed from Masar-i-Sharif, who had arrived in the meantime.

28. On 4 and 5 September 2009, members of PRT Kunduz, the military police, and the ISAF “Initial Action Team” (see paragraph 65 below) visited hospitals and villages in the area and interviewed several persons regarding the airstrike. Colonel K. was partially involved in some interviews and was kept up to date regarding the investigation.

29. The military police submitted their report to Brigadier-General V. on 9 September 2009.

2. Investigation by the German public prosecution authorities

30. On the day of the airstrike, the chief legal officer of the armed forces informed the public prosecutor's office in Potsdam (where the Bundeswehr Operations Command is located) about the airstrike. On 7 September 2009, the latter launched a preliminary investigation, which was later transferred to the public prosecutor's office in Leipzig (the then-duty station of Colonel K.) and subsequently to the Dresden Public Prosecutor General (the prosecution authority superior to the Leipzig public prosecutor). After further preparatory work, which included exchanges with the Federal Ministry of Defence concerning the legal framework of the military deployment in Afghanistan and the potential existence of an exculpatory defence (Rechtfertigungsgrund), the Dresden Public Prosecutor General on 5 November 2009 requested the office of the Federal Prosecutor General to review the possibility of taking over the prosecution of the case in the light of possible liability under the Code of Crimes against International Law (see paragraphs 94-95 and 101 below). By this time, the Federal Prosecutor General's office was already in the process of establishing whether it had competence, having initiated a preliminary investigation on 8 September 2009.

31. As to the course of the investigation, the Federal Prosecutor General, by letter of 27 November 2009, asked the Bundeswehr Operations Command to forward all findings of fact relevant to the airstrike in question for further clarification. Three days later the Bundeswehr Operations Command forwarded a considerable number of reports. It provided further additional documentation on 16 December 2009. By letter of 8 December 2009, the Federal Prosecutor General asked for copies of the files presented to the parliamentary commission of inquiry (see paragraph 69 below), which were subsequently provided to him; he also received copies of the transcripts of the commission's hearings. On 21 December 2009 the Federal Prosecutor General sent a comprehensive catalogue of questions to the Bundeswehr Operations Command, which were answered in a letter dated 8 February 2010. On 23 February 2010, a letter with additional questions was addressed to the German Federal Ministry of Defence, which responded to these.

32. On 12 March 2010, based on the factual findings up to that point, the Federal Prosecutor General opened a criminal investigation against Colonel K. and Staff Sergeant W., who had assisted Colonel K. on the night of the airstrike. From 22 to 25 March 2010 the Federal Prosecutor General interrogated the two suspects and interviewed two witnesses (Captain X. and Staff Sergeant Y.), who had been present at the command centre of the base in Kunduz at the relevant time. Furthermore, the collected documents and the video material from the aircraft were analysed.

33. On 16 April 2010 the Federal Prosecutor General discontinued the criminal investigation due to a lack of sufficient grounds for suspicion that the suspects had incurred criminal liability under either the Code of Crimes against International Law or the Criminal Code. He determined that the situation in Afghanistan at the material time, at least in the northern part of the country where the German armed forces were deployed, amounted to a non-international armed conflict within the meaning of international humanitarian law, notwithstanding the involvement of international troops. He concluded that Afghanistan had consented to the ISAF deployment in a manner valid under international law and ISAF was fighting on behalf of the Afghan authorities. The Taliban insurgency and the groups affiliated thereto, described in detail in the decision, were to be classified as a “party to the conflict” under international law. The existence of this non- international armed conflict triggered the applicability of international humanitarian law (see also Article 25 of the Basic Law, paragraph 93 below) and of the Code of Crimes against International Law. German soldiers forming part of ISAF were regular combatants and therefore not criminally liable for acts of war permitted under international law. The Federal Prosecutor General concluded that Colonel K.'s liability under the Code of Crimes against International Law, notably its Article 11 § 1 no. 3 (see paragraph 95 below), was excluded because Colonel K. did not have the necessary intent to kill or harm civilians or damage civilian objects. Liability under the Criminal Code, for murder but also for any other offence, was excluded because the lawfulness of the airstrike under international law served as an exculpatory defence.

34. A press release summarising the main findings of the Federal Prosecutor General and indicating that most of the factual information was classified was issued on 19 April 2010. A redacted version of the discontinuation decision was prepared on 13 October 2010.

35. It stated that the following pieces of evidence had been assessed:

1. – COMISAF investigation report with all annexes;

2. – NATO/ISAF provisions (Standard Operating Procedures, Rules of Engagement, Tactical Directives, Intelligence Evaluation Matrix, Special Instructions for Air and Space Operations);

3. – report of the Military Police of 9 September 2009, with 44 annexes (including photographs and video footage);

4. – written statement by Colonel K. of 5 September 2009 made to the Chief of Staff of the German Armed Forces;

5. – report by Colonel N., member of the ISAF fact-finding team, of 6 September 2009;

6. – report of the representative of the Kunduz region to the Afghan President of 4 September 2009;

7. – report of the Afghan commission of inquiry to the Afghan President;

8. – United Nations Assistance Mission in Afghanistan (“UNAMA”) list of potential civilian victims of the airstrike;

9. – NGO report of 5 September 2009 [classified];

10. – report of the ISAF Initial Action Team of 6 September 2009;

11. – minutes of the conversations at PRT Kunduz with the Afghan commission of inquiry, with local representatives and with a delegation of the Initial Action Team;

12. – written statement by the Operations Command of the German Armed Forces of 8 February 2010 in response to the questions by the Federal Prosecutor General of 21 December 2009;

13. – 164 file folders of the Federal Ministry of Defence;

14. – minutes of the meetings of the Parliamentary Defence Committee sitting as First Commission of Inquiry, in which the two suspects and Captain X. were examined;

15. – examinations of the two suspects as well as of the witnesses Captain X. and Staff Sergeant Y. by the Federal Prosecutor General;

16. – minutes of the radio traffic between the pilots of the F-15 aircraft and Staff Sergeant W. and video footage.

36. The Federal Prosecutor General considered that two aspects, in particular, had to be clarified: Colonel K.'s subjective assessment of the situation when he ordered the airstrike and the exact number of persons who had suffered death or injury as a result.

37. He found credible Colonel K.'s account that he had assumed that only Taliban insurgents, and no civilians, had been located near the fuel tankers when he ordered the airstrike. It had been corroborated by a large number of objective circumstances, the statements of the persons who had been present at the command centre and the video footage from the aircraft prior to and during the airstrike.

38. Given that the release of the bombs had occurred at 1.49 a.m., during Ramadan, with the nearest village located at least 850 metres away, in an area that was a stronghold of the insurgents, the presence of civilians would have seemed unlikely from the standpoint of an objective observer. There had also been an intelligence warning regarding a planned attack on the German base involving vehicles packed with explosives. Numerous such attacks had already been perpetrated in Afghanistan in the months leading up to 4 September 2009. Colonel K. had had no reason to doubt the accuracy of the intelligence provided by the informant. He had worked with that same informant only a few days before and the information provided had been reliable. Captain X., through whom he had had at least seven calls put through to the informant in order to verify the evolution of the situation and to confirm that only insurgents were present at the scene, had for his part regarded the informant as reliable. The intelligence given by the informant corresponded to the video feed from the aircraft. Colonel K.'s conduct was in line with the care he had exercised in taking decisions that might cause collateral damage to civilian life on earlier occasions.

39. The other persons present at the command post had all credibly testified that they had operated on the assumption that only insurgents and no civilians had been present at the location. It was unlikely that any additional insights as to whether or not Colonel K. had acted in the expectation of civilian casualties when he ordered the airstrike could be gleaned by examining additional witnesses. Captain X., who was also examined, had been the only person present at the time the informant's intelligence was transmitted and there were no indications that he had transmitted the said intelligence incorrectly. The radio communication between the pilots and the command centre did not contain any indication that Colonel K. had acted in the expectation of civilian casualties. It had not been in dispute that the fuel tankers had been in the hands of Taliban fighters and there were no indications that these fighters were no longer near the fuel tankers at the time of the airstrike. Moreover, as the Taliban were indistinguishable from civilians based on attire, it was not possible for the pilots to help establish whether it was visually apparent that the persons around the fuel tankers had included civilians.

40. In the case at hand, the number of civilian casualties could not serve as circumstantial evidence from which Colonel K.'s subjective expectations could be deduced. The number of persons killed or injured by the airstrike, and how many of these were Taliban or civilians, could not be ascertained. Having regard to the divergent findings of the different reports in this respect, the methods by which they had been established, and the available evidence, including the video material, it was probable that about fifty persons had been killed or injured. It was certain that two known Taliban commanders were among those killed, and the available reports allowed the conclusion that there were significantly more Taliban than civilians among the victims. It was not possible to clarify this matter further as the social and religious mores of the Afghan population prevented use of the modern forensic investigation techniques, including the exhumation of bodies or DNA analyses, that would be required. In any event, the number of people present on the scene at the time of the airstrike did not constitute a reason to question Colonel K.'s assumption that he was dealing exclusively with Taliban fighters.

41. Regarding Colonel K.'s liability under the Code of Crimes against International Law, the Federal Prosecutor General considered that the airstrike of 4 September 2009 met the functional context requirement and the objective constituent elements of Article 11 § 1 no. 3 of the Code, as it constituted an attack by military means in connection with the non-international armed conflict in Afghanistan. The subjective constituent elements of the offence, by contrast, were not present. Direct intent to cause disproportionate collateral damage was required. Colonel K. had credibly testified that he had acted on the premise that only insurgents were present at the scene. Not only had he thus not expected damage to civilians with the certainty required by the provision; he had, in fact, not expected such damage to occur at all. The question of the disproportionality of the expected collateral damage thus did not even arise.

42. The fuel tankers had been hijacked by an organised group of armed Taliban fighters. Both the members of that group and the fuel tankers were legitimate military targets at the time Colonel K. had ordered the airstrike. In respect of the Taliban, the Federal Prosecutor General explained that under international law all persons who had become functionally integrated into, and exercised a continuous combat function within, an organised armed group were not civilians but legitimate military targets. Such persons could also be attacked outside the scope of ongoing hostilities until they had given up this combat function in a lasting and conclusive manner (see paragraph 80 below).

43. The Federal Prosecutor General considered that general criminal law had remained applicable and concluded that his competence extended to prosecuting offences under the Criminal Code where the military action fell within the scope of the Code of Crimes against International Law. However, Colonel K. could also not be held liable under the Criminal Code, and Staff Sergeant W. could not be liable for having aided and abetted Colonel K. While the objective and subjective constituent elements of the offence of murder had been present, Colonel K.'s actions had been lawful under international law, which served as an exculpatory defence in respect of military action.

44. The international humanitarian law status of the victims of the airstrike was crucial for determining its lawfulness. Armed fighters affiliated with a non-State party to a non-international armed conflict and civilians participating directly in hostilities were legitimate targets for military attacks, whereas civilians not directly participating in hostilities were not. The armed Taliban fighters who had hijacked the two fuel tankers – and who probably accounted for most of the victims of the airstrike – were indeed members of an organised armed group that was party to the armed conflict. They were thus legitimate military targets whose “destruction” was permissible within the bounds of military necessity, in respect of which no restrictions could be inferred in the present case.

45. The airstrike had also led to the killing of civilians who were protected under international humanitarian law and were not legitimate targets of military attack. It could be accepted as a premise that all those airstrike victims who were not Taliban fighters were civilians not taking a direct part in the hostilities, including those who were helping the Taliban to free the fuel tankers from the sand bank and those who were trying to obtain fuel for their own benefit. However, Colonel K.'s order to launch the airstrike was legitimate under international law even considering that it had also killed civilians protected under international humanitarian law. International humanitarian law only prohibited attacks launched against civilians as such or against a military objective when the civilian damage to be expected at the time of ordering the attack was disproportionate (“excessive”) to the expected, actual, and direct military advantage (see paragraph 81 below). The military standard of disproportionality, that is to say, the prohibition of excessiveness, could not be equated with the stricter benchmark of a lack of reasonableness. The attacker's objectively based expectation at the time of the military action was decisive, both in respect of the tactical military advantage and foreseeable civilian collateral damage. Civilian collateral damage was relevant to the proportionality test only if a commander had failed to take “feasible precautions” which would have enabled him to anticipate an event of major civilian collateral damage occurring. Disproportionality in this sense could be imputed only in a case of patent excess.

46. The airstrike at issue had pursued two military objectives: to destroy the fuel tankers and the fuel hijacked by the Taliban and to kill Taliban fighters. Given the circumstances known to Colonel K. (the distance of the sand bank from inhabited settlements, the time of night and the presence of armed Taliban), and given the statements made by the informant, Colonel K. had had no reason to suspect the presence of protected civilians on the scene. There had been no possibility of implementing further reconnaissance and/or precautionary measures in a timely manner. The danger that the fuel tankers or the fuel would be recovered by the Taliban was not one which Colonel K. had been obliged to accept. The circumstances provided sufficient indications that the persons in question were the legitimate target of a military attack: no absolute certainty was required.

47. However, even assuming for the sake of argument that Colonel K. ought to have anticipated the killing of several dozen protected civilians, this would not have been out of all proportion to the expected military advantage. Nor would it have breached the precept to use the mildest possible means. The question of means had in fact been discussed before the airstrike among Colonel K., Staff Sergeant W. and the pilots. Contrary to the latter's recommendation to deploy heavier ordinance, Colonel K. had opted for the smallest bomb size available and for the use of delayed detonation fuses, which limited the bombs’ effective range.

48. The conclusion that the attack order was permissible under international law was unaffected by the general obligation to give advance warnings before an attack that could potentially cause collateral damage to the civilian population. Not only had Colonel K. been working on the justifiable assumption that the attack he had ordered would not hit any civilians, but the aforementioned obligation could be dispensed with if the prevailing circumstances so dictated (see paragraph 81 below). In the case at hand giving a warning could have thwarted the legitimate military objective of killing the Taliban fighters.

49. Any alleged breach of internal rules such as the ISAF Rules of Engagement, which involved a self-imposed restriction in the interests of achieving a long-term political solution to the Afghan conflict and which afforded a higher level of protection to the civilian population than required under international law, was irrelevant for evaluating the lawfulness of military conduct.

3. The applicant's involvement in the investigation and his challenges to the discontinuation decision

4. Proceedings before the Federal Constitutional Court

56. On 17 March 2011 and 27 April 2011 the applicant, represented by counsel, lodged constitutional complaints with the Federal Constitutional Court. The later complaint encompassed the earlier one and, in addition, challenged the Court of Appeal's decision of 31 March 2011. In alleging that the criminal investigation had been ineffective, the applicant argued in particular that not all necessary investigative measures had been taken in order to comprehensively establish the objective circumstances of the airstrike; neither the applicant, nor eyewitnesses, nor military experts had been examined with a view to determining whether the suspects could justifiably base their decision to order the airstrike on the information available to them, and whether sufficient precautionary measures had been taken. The number of victims had not been established, nor had there been medical reports on the cause of death. Moreover, the applicant as the next-of-kin of two victims of the airstrike had been insufficiently involved in the proceedings, in view of the limited and delayed access to the investigation file, the failure to be heard, the delay in the service of the Federal Prosecutor General's discontinuation decision and the excessive admissibility requirements applied by the Court of Appeal.

57. On 8 December 2014 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 627/14) insofar as it concerned access to the investigation file. The applicant did not challenge this decision in the present application.

58. On 19 May 2015 the Federal Constitutional Court refused to admit the constitutional complaint for adjudication (no. 2 BvR 987/11) insofar as it concerned the effectiveness of the criminal investigation, finding that it was, in any event, ill-founded. While the applicant had a right to an effective criminal investigation, both the discontinuation decision of the Federal Prosecutor General and the decision of the Düsseldorf Court of Appeal in respect of his motion to compel public charges had satisfied the respective requirements.

59. The discontinuation decision of the Federal Prosecutor General had neither misjudged the importance of the right to life and the resulting obligations of the State to protect it nor the requirement to carry out an effective investigation into deaths as defined by the case-law of the Federal Constitutional Court and of the European Court of Human Rights. The Federal Prosecutor General's decision had described the investigations that he had carried out and concluded that there were insufficient indications to establish reasonable grounds for suspicion. That decision had mainly been based on the presumption that the suspects had been convinced, at the time of ordering the airstrike, that the persons in the immediate vicinity of the fuel tankers were armed insurgents, which excluded the intent required for liability under Article 11 § 1 no. 3 of the Code of Crimes against International Law. That determination had not been arbitrary and thus did not warrant objections under constitutional law.

60. Additional investigatory measures, such as the examination of witnesses who had observed the airstrike, would not have changed this. The bombing itself and the deaths of numerous civilians had never been in doubt. The key aspect of the decision to discontinue the investigation had been that it could not be proven that the suspects knew with certainty that the airstrike would injure or even kill civilians. Neither that finding nor the investigations carried out to that end raised concerns under constitutional law. Lastly, the Federal Prosecutor General's position – that he was also competent to investigate offences under the Criminal Code that might have been committed through the same act that led him to investigate offences under the Code of Crimes against International Law – was not arbitrary.

61. The Federal Constitutional Court further held that the Düsseldorf Court of Appeal's decision of 16 February 2011 did not raise concerns under constitutional law either. The investigations that had been carried out and their documentation by the Federal Prosecutor General satisfied constitutional requirements. A subsequent review decision by a court thus could not result in a breach of the right to an effective criminal investigation. In this respect, it was not decisive whether the court had dismissed the motion to compel public charges as inadmissible or as ill-founded, as long as an examination of the challenged decision to discontinue the investigation could be discerned. The Court of Appeal had dismissed that motion as inadmissible, but the manner and the scope of the Court of Appeal's reasoning showed that it had conducted a detailed examination of the Federal Prosecutor General's discontinuation decision and the investigations documented therein.

62. Moreover, the Federal Constitutional Court found that the Court of Appeal's decision had not misjudged the importance and scope of the applicant's right to effective protection of his legal interests (Grundrecht auf effektiven Rechtsschutz). The requirements applied by the Court of Appeal in respect of the content of the motion to compel public charges did not raise concerns under constitutional law in this respect. As the applicant had, to a significant extent, based his motion seeking to compel public charges on the content of the investigation file, he had to provide the essential content of the pieces of evidence which he cited; otherwise the legislature's intent that the competent court had to be able to examine the motion's conclusiveness solely based on the brief itself would be undermined. A selective, or even distorted, representation of parts of a suspect's account or of witness examinations could create an inaccurate image of the result of the investigation which could not easily be corrected. This might oblige the applicant to also submit information on circumstances which could exonerate a suspect. In the present case, the applicant had not satisfied these requirements.

63. Lastly, the Court of Appeal's decision had not breached the applicant's right to be heard. In this respect, the Federal Constitutional Court endorsed the reasons advanced by the Court of Appeal in its order of 31 March 2011.

64. The Federal Constitutional Court's decision was served on the applicant's counsel on 13 July 2015.

5. Other investigations

65. After COMISAF learned of the airstrike on the morning of 4 September 2009, he initiated an investigation. The so-called “Initial Action Team” arrived in Kunduz late that afternoon, was shown video footage from the F-15 aircraft and interviewed several members of PRT Kunduz, including Colonel K. The following day, it conducted an on-site investigation, visited a hospital and met with Afghan officials. In its report of 6 September 2009, it recommended further assessment of the events by a Joint Investigation Board. This board concluded its investigation on 26 October 2009 and published its findings in a second report (“COMISAF investigation report”). Both reports are classified “NATO-/ISAF-Confidential”.

66. By order of the President of the Islamic Republic of Afghanistan an inquiry commission was sent to Kunduz on 4 September 2009 and interviewed witnesses of the airstrike and secured evidence. Its final report was published on 10 September 2009 and concluded that the airstrike had killed 99 persons, of whom 69 were insurgents and 30 civilians. In addition, both insurgents and civilians had been injured. The report further stated that the airstrike had been directed at the insurgents and succeeded in weakening the Taliban network.

67. The United Nations Assistance Mission in Afghanistan collected information about possible victims of the airstrike. It compiled a list with personal details of 109 deceased and 33 injured. In addition, it reported on the airstrike in its annual report (UNAMA, Annual Report on Protection of Civilians in Armed Conflict 2009, January 2010), as follows:

68. The International Committee of the Red Cross also investigated the airstrike from 5 September 2009 onwards and submitted a confidential report to ISAF on 30 October 2009.

69. On 16 December 2009 the German Parliament established a commission of inquiry to assess, inter alia, whether the airstrike was in compliance with the mandate given by Parliament to the German armed forces, with the operative planning and with the applicable orders and rules of engagement. On 20 October 2011 the commission concluded its investigation and published its report. As to the number of victims of the airstrike, it noted that different reports indicated between 14 and 142 deceased (14 to 113 civilians) and ten to 33 injured persons (four to nine civilians). Regarding the question of compliance with the applicable orders and rules of engagement, it came to the conclusion that Colonel K. made certain procedural mistakes when ordering the airstrike, and partially violated the applicable ISAF rules of engagement. Consequently, based on the information available to the commission, the airstrike could not be considered proportionate and should not have been ordered. However, the commission also stated that Colonel K. acted at the relevant time to the best of his knowledge and to protect “his” soldiers. Therefore his decision to order the airstrike was comprehensible.

6. Civil proceedings for compensation

70. The applicant together with another individual lodged a civil action for compensation against the Federal Republic of Germany in connection with the killing of their relatives by the airstrike of 4 September 2009. After the Bonn Regional Court had rejected the action and the plaintiffs’ appeal before the Cologne Court of Appeal had been to no avail, the Federal Court of Justice, by judgment of 6 October 2016, rejected as ill-founded the plaintiffs’ appeal on points of law. It left open the question whether Germany could be sued for extraterritorial military operations of the Bundeswehr under NATO operational command. However, it found, firstly, that the plaintiffs, as individuals, could not claim compensation from Germany for a breach of international humanitarian law based directly on international law; such right could, as a rule, only be exercised by their State. It found, secondly, that German law on State liability was not applicable to harm done to foreign citizens by the German armed forces in the framework of a deployment to an armed conflict overseas. Irrespective of this question of applicability, such a claim by the plaintiffs was ruled out in any event because there had been no breach of official duty by a German soldier or authority, notably no culpable breach of the rules of international humanitarian law by Colonel K. The Court of Appeal had not erred in law when it determined, basing itself on the facts established by the Regional Court, that the presence of civilians at the site of the airstrike had not been objectively foreseeable for Colonel K. at the time of ordering the airstrike, all feasible precautionary measures having been taken. The Federal Constitutional Court declined to consider the applicant's constitutional complaint lodged in respect of these civil proceedings (file no. 2 BvR 477/17, order of 18 November 2020, delivered on 16 December 2020).

1. Agreement on provisional arrangements in Afghanistan pending the re-establishment of permanent government institutions of 5 December 2001 (“the Bonn Agreement”)

71. The relevant passages of the above agreement read as follows:

“The participants in the UN talks on Afghanistan,

…

Reaffirming the independence, national sovereignty and territorial integrity of Afghanistan,

Acknowledging the right of the people of Afghanistan to freely determine their own political future in accordance with the principles of Islam, democracy, pluralism and social justice,

…

Recognizing that some time may be required for a new Afghan security force to be fully constituted and functional and that therefore other security provisions detailed in Annex I to this agreement must meanwhile be put in place,

…

Have agreed as follows:

THE INTERIM AUTHORITY

…

V. Final provisions

…

3) The Interim Authority shall cooperate with the international community in the fight against terrorism, drugs and organized crime. It shall commit itself to respect international law and maintain peaceful and friendly relations with neighbouring countries and the rest of the international community.

…

2. United Nations Security Council Resolution 1386 (2001) of 20 December 2001

72. The above resolution reads as follows:

1. Authorizes, as envisaged in Annex 1 to the Bonn Agreement, the establishment for 6 months of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment;

2. Calls upon Member States to contribute personnel, equipment and other resources to the International Security Assistance Force, and invites those Member States to inform the leadership of the Force and the Secretary-General;

3. Authorizes the Member States participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate;

4. Calls upon the International Security Assistance Force to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate, as well as with the Special Representative of the Secretary-General;

5. Calls upon all Afghans to cooperate with the International Security Assistance Force and relevant international governmental and non-governmental organizations, and welcomes the commitment of the parties to the Bonn Agreement to do all within their means and influence to ensure security, including to ensure the safety, security and freedom of movement of all United Nations personnel and all other personnel of international governmental and non-governmental organizations deployed in Afghanistan;

6. Takes note of the pledge made by the Afghan parties to the Bonn Agreement in Annex 1 to that Agreement to withdraw all military units from Kabul, and calls upon them to implement this pledge in cooperation with the International Security Assistance Force;

7. Encourages neighbouring States and other Member States to provide to the International Security Assistance Force such necessary assistance as may be requested, including the provision of overflight clearances and transit;

8. Stresses that the expenses of the International Security Assistance Force will be borne by the participating Member States concerned, requests the Secretary-General to establish a trust fund through which contributions could be channelled to the Member States or operations concerned, and encourages Member States to contribute to such a fund;

9. Requests the leadership of the International Security Assistance Force to provide periodic reports on progress towards the implementation of its mandate through the Secretary-General;

10. Calls on Member States participating in the International Security Assistance Force to provide assistance to help the Afghan Interim Authority in the establishment and training of new Afghan security and armed forces;

11. Decides to remain actively seized of the matter.”

3. Subsequent United Nations Security Council Resolutions

73. In its Resolution 1510 (2003) of 13 October 2003 the United Nations Security Council expanded the mandate of ISAF to areas of Afghanistan outside of Kabul and its environs.

74. In addition, the United Nations Security Council continuously renewed the authorisation for ISAF given by Resolution 1386 (2001). For the relevant time, United Nations Security Council Resolution 1833 (2008) of 22 September 2008 extended the authorisation for a period of twelve months beyond 13 October 2008. The relevant parts read:

1. Decides to extend the authorization of the International Security Assistance Force, as defined in resolution 1386 (2001) and 1510 (2003), for a period of twelve months beyond 13 October 2008;

2. Authorizes the Member States participating in ISAF to take all necessary measures to fulfil its mandate;

…

5. Calls upon ISAF to continue to work in close consultation with the Afghan Government and the Special Representative of the Secretary-General as well as with the OEF coalition in the implementation of the force mandate;

6. Requests the leadership of ISAF to keep the Security Council regularly informed, through the Secretary-General, on the implementation of its mandate, including through the provision of quarterly reports;

7. Decides to remain actively seized of this matter.”

4. Military Technical Agreement between the International Security Force (ISAF) and the Interim Administration of Afghanistan (‘Interim Administration’) of 4 January 2002

75. The above agreement reads, insofar as relevant, as follows:

“Article I: General Obligations

…

4. For the purpose of this Military Technical Agreement, the following expressions shall have the meaning described below:

…

g. Area of Responsibility (AOR) is the area marked out on the map attached at Annex B.

…

i. An ‘Offensive Action’ is any use of armed military force.

…

Article II: Status of the International Security Force

1. The arrangements regarding the Status of the ISAF are at Annex A. Article III: Provision of Security and Law and Order

1. The Interim Administration recognises that the provision of security and law and order is their responsibility. This will include maintenance and support of a recognised Police Force operating in accordance with internationally recognised standards and Afghanistan law and with respect for internationally recognised human rights and fundamental freedoms, and by taking other measures as appropriate.

2. The Interim Administration will ensure that all Afghan Military Units come under its command and control in accordance with the Bonn Agreement. The Interim Administration agrees it will return all Military Units based in Kabul into designated barracks detailed at Annex C as soon as possible. Such units will not leave those Barracks without the prior approval of the Interim Administration and notification to the ISAF Commander by the Chairman of the Interim Administration.

3. The Interim Administration will refrain from All Offensive Action within the AOR.

…

ANNEX A

Arrangements Regarding the Status of the International Security Assistance Force (“ISAF Status of Forces Agreement”)

Section 1: Jurisdiction

1. The provisions of the Convention on the Privileges and Immunities of the United Nations of 13 February 1946 concerning experts on mission will apply mutatis mutandis to the ISAF and supporting personnel, including associated liaison personnel.

…

3. The ISAF and supporting personnel, including associated liaison personnel, will under all circumstances and at all times be subject to the exclusive jurisdiction of their respective national elements in respect of any criminal or disciplinary offences which may be committed by them on the territory of Afghanistan. The Interim Administration will assist the ISAF contributing nations in the exercise of their respective jurisdictions.

4. The ISAF and supporting personnel, including associated liaison personnel, will be immune from personal arrest or detention. ISAF and supporting personnel, including associated liaison personnel, mistakenly arrested or detained will be immediately handed over to ISAF authorities. The Interim Administration agree that ISAF and supporting personnel, including associated liaison personnel, may not be surrendered to, or otherwise transferred to the custody of, an international tribunal or any other entity or State without the express consent of the contributing nation. ISAF Forces will respect the laws and culture of Afghanistan.

…”

1. The Vienna Convention on the Law of Treaties

76. Article 31 of the Vienna Convention on the Law of Treaties 1969 (“the Vienna Convention”) provides as follows:

Article 31 General Rule of Interpretation

“1. A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose.

2. The context for the purpose of the interpretation of a treaty shall comprise, in addition to the text, including its preamble and annexes:

(a) Any agreement relating to the treaty which was made between all the parties in connexion with the conclusion of the treaty;

(b) Any instrument which was made by one or more parties in connexion with the conclusion of the treaty and accepted by the other parties as an instrument related to the treaty.

3. There shall be taken into account, together with the context:

(a) Any subsequent agreement between the parties regarding the interpretation of the treaty or the application of its provisions;

(b) Any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation;

(c) Any relevant rules of international law applicable in the relations between the parties.

4. A special meaning shall be given to a term if it is established that the parties so intended.”

2. Case-law of the International Court of Justice

77. In its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons (8 July 1996), the International Court of Justice stated as follows:

“25. The Court observes that the protection of the International Covenant for the Protection of Civil and Political Rights does not cease in times of war, except by operation of Article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life, however, is not such a provision. In principle, the right not arbitrarily to be deprived of one's life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to Article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself.

…

41. The submission of the exercise of the right of self-defence to the conditions of necessity and proportionality is a rule of customary international law. As the Court stated in the case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America): there is a ‘specific rule whereby self-defence would warrant only measures which are proportional to the armed attack and necessary to respond to it, a rule well established in customary international law’ (I. C. J. Reports 1986, p. 94, para. 176). This dual condition applies equally to Article 51 of the Charter, whatever the means of force employed.”

78. In its Advisory Opinion on the Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory (9 July 2004), the International Court of Justice rejected Israel's argument that the human rights instruments to which it was a party were not applicable to occupied territory, and held:

79. In its judgment concerning Armed Activities on the Territory of the Congo (Democratic Republic of Congo v. Uganda) (19 December 2005), the International Court of Justice held as follows:

3. International humanitarian law

80. Article 50 of the Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), of 8 June 1977 (“Additional Protocol I”), which is applicable to international armed conflicts, defines civilians as persons who are not members of the armed forces. The Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), of 8 June 1977 (“Additional Protocol II”), which is applicable to non-international armed conflicts, does not contain a definition of civilians. The definition of civilians in Additional Protocol I is a norm of customary international law which also applies to non-international armed conflicts (see Rule 5 of the Customary International Humanitarian Law study by the International Committee of the Red Cross (“ICRC”) and the commentary thereonFootnote ²). Civilians are protected against attack in non-international armed conflict, unless and for such time as they take a direct part in hostilities (Article 13 (3) of Additional Protocol II and Rule 6 of the Customary International Humanitarian Law study). In respect of non-international armed conflicts, the Customary International Humanitarian Law study indicated that there was ambiguity whether members of armed opposition groups could be considered civilians and be attacked lawfully only for such time as they took a direct part in hostilities, or whether they were, due to their membership, either considered to be continuously taking a direct part in hostilities or considered not to be civilians (see commentary on Rules 5 and 6). In 2009, the ICRC published Interpretive Guidance on the Notion of Direct Participation in Hostilities under International Humanitarian Law,Footnote ³ stating, inter alia, that in non-international armed conflict organised armed groups constituted the armed forces of a non-State party to the conflict and consisted only of individuals whose continuous function it was to take a direct part in hostilities (“continuous combat function”). Such members of organised armed groups belonging to a non-State party to an armed conflict ceased to be civilians, and lost protection against direct attack, for as long as they assumed their continuous combat function.

81. The prohibition of indiscriminate attacks, set forth in Article 51(4) of Additional Protocol I, constitutes a norm of customary international law applicable in both international and non-international armed conflicts (see Rules 11 to 13 of the Customary International Humanitarian Law study and the commentaries thereon). The principle of proportionality in attack, codified in Article 51(5)(b) and repeated in Article 57(2)(a)(iii) of Additional Protocol I, is recognised as a norm of customary international law which is applicable in both international and non-international armed conflict (see paragraph 77 above and Rule 14 of the Customary International Humanitarian Law study). It provides that 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 advantage anticipated, is prohibited. State practice indicates that an ex ante perspective is decisive in this respect and Germany made a declaration to that effect upon ratification of Additional Protocol I. The principle of precautions in attack, codified in Article 57 of Additional Protocol I, is a norm of customary international law applicable in both international and non-international armed conflicts (see Rules 15 to 21 and the commentaries thereon). It provides that in the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects and that all feasible precautions must be taken, including in the choice of means and methods of warfare, to avoid, and in any event to minimise, incidental loss of civilian life, injury to civilians and damage to civilian objects. Everything feasible must be done to verify that targets are military objectives and to assess whether the attack 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 advantage anticipated. Each party to the conflict must give effective advance warning of attacks which may affect the civilian population, unless circumstances do not permit, such as in cases where the element of surprise is essential to the success of an operation or to the security of the attacking forces. The obligation to take all “feasible” precautions has been interpreted by many States as being limited to those precautions which are practicable or practically possible, taking into account all circumstances prevailing at the time, including humanitarian and military considerations.

82. The four Geneva Conventions of 1949 and their Additional Protocol I, all of which are applicable to international armed conflict only (with the exception of the common Article 3 to the Conventions), place an obligation on each Contracting State to investigate and prosecute alleged grave breaches of the Conventions, including the wilful killing of protected persons.Footnote ⁴ Additional Protocol II does not contain a similar provision. Its Article 6 contains certain guarantees to be respected in the prosecution and punishment of criminal offences related to the armed conflict, including a court “offering the essential guarantees of independence and impartiality” and that the accused be informed “without delay” of the grounds against him.

83. It is an established norm of customary international humanitarian law which is also applicable in non-international armed conflicts, that States must investigate war crimes allegedly committed by their nationals or armed forces, or on their territory, and, if appropriate, prosecute the suspects. They must also investigate other war crimes over which they have jurisdiction and, if appropriate, prosecute the suspects (see Rule 158 of the Customary International Humanitarian Law study and the commentary thereon). States engaging in multinational operations under the auspices of an international organisation are under the obligation to ensure respect for the entire body of international humanitarian law, including customary international humanitarian law, by their national contingent, including by the exercise of disciplinary and criminal powers retained by them.Footnote ⁵

84. International humanitarian law assigns duties to commanders to ensure compliance with its rules, including in respect of initiating disciplinary or penal action against subordinates or other persons under their control (see Article 87 of Additional Protocol I and the ICRC commentary thereonFootnote ⁶ as well as Rule 153 of the Customary International Humanitarian Law study and commentary thereon in respect of the corresponding rule of command responsibility for failure to prevent, repress or report war crimes).

85. In 2019, the ICRC and the Geneva Academy of International Humanitarian Law and Human Rights published the Guidelines on investigating violations of IHL: Law, policy and good practice (“Guidelines on investigating violations of IHL”). These Guidelines, while noting that international humanitarian law has few provisions on the specific way investigations should be carried out, draw on internationally recognised principles most commonly required for the effectiveness of an investigation (independence, impartiality, thoroughness and promptness, and in a modified form, transparency) and elucidate their practical application to investigations in armed conflict.

4. United Nations Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law (“UN Basic Principles and Guidelines”)

86. The UN Basic Principles and Guidelines, adopted by General Assembly Resolution 60/147 of 16 December 2005 (A/RES/60/147), call for States to investigate violations of international humanitarian law “effectively, promptly, thoroughly and impartially” (under II., 3. lit. b).

5. United Nations Human Rights Committee

87. In its General Comment No. 36 on the right to life under Article 6 of the International Covenant on Civil and Political Rights, adopted on 30 October 2018, the Human Rights Committee stated:

6. The Minnesota Protocol

88. In 2017, the Office of the UN High Commissioner for Human Rights published a revised version of the Minnesota Protocol on the Investigation of Potentially Unlawful Death (“the Minnesota Protocol”), a set of international guidelines, which provides:

7. Inter-American Court of Human Rights

89. In its judgment of 15 September 2005 on the merits, reparations and costs in Mapiripán Massacre v. Colombia, which concerned a massacre of civilians carried out by a paramilitary group with the alleged assistance of the State authorities, the Inter-American Court of Human Rights recognised the existence of a non-international armed conflict and stated that it would take international humanitarian law into account in interpreting the American Convention on Human Rights (paragraphs 114-115). The court went on to determine that the standard against which the investigations into the extra-legal executions had to be measured was one of a “serious, impartial and effective investigation that must not be undertaken as a mere formality destined beforehand to be fruitless” (paragraph 223). Such investigation must draw on all available means in order to discover the truth within a reasonable timeframe, bearing in mind the complexity of the events under investigation and their context (see, in particular, Afro-Descendant Communities Displaced from the Cacarica River Basin (Operation Genesis) v. Colombia, Preliminary Objections, Merits, Reparations and Costs, Judgment of 20 November 2013, paragraphs 370-373).

Article 1

Article 2

Article 11

Article 152

Article 153c

Article 153f

1. 1. no German national is suspected of having committed the crime;

2. 2. the offence was not committed against a German national;

3. 3. no suspect is, or is expected to be, resident in Germany;

4. 4. the offence is being prosecuted by an international court of justice or by a country on whose territory the offence was committed, a citizen of which is either suspected of the offence, or suffered injury as a result of the offence.

Article 160

Article 170

Article 171

97. According to well-established domestic practice, indications that a person may have committed a criminal offence which fall below the threshold of “sufficient factual indications” as set out in Article 152 § 2 of the Code of Criminal Procedure are insufficient for the opening of a formal criminal investigation under Article 160 § 1 of the Code of Criminal Procedure. In such a scenario, the public prosecutor's office may conduct preliminary investigations in order to establish whether there are “initial grounds for suspicion” (Anfangsverdacht) justifying the opening of a formal criminal investigation. In such preliminary investigations, the person concerned does not have the status of an “accused” and no coercive investigatory measures may be undertaken. However, the public prosecutor's office is authorised to examine witnesses and to procure a judicial examination of witnesses where appropriate (see Offenburg Regional Court, no. Qs 41/93, order of 25 May 1993).

Section 120

8. criminal offences pursuant to the Code of Crimes against International Law.

Section 142a

Section 146

Section 147

1. the Federal Minister of Justice and Consumer Protection in respect of the Federal Prosecutor General and the federal prosecutors; …”.

1. The parties’ submissions

3. The Court's assessment

1. The parties’ submissions

146. The Government submitted that the applicant had not exhausted all domestic remedies concerning his objections of a lack of independence – both in Afghanistan (see paragraph 158 below) and in Germany (because of pressure allegedly exerted by the Federal Ministry of Defence on the Dresden Public Prosecutor General and because of the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General) – and a lack of reasonable expedition of the investigations (see paragraphs 164-166 below). He had not raised these complaints, not even in substance, either in his constitutional complaint to the Federal Constitutional Court, or in his motion to compel public charges before the Düsseldorf Court of Appeal. His unspecified references to the general obligation to conduct effective investigations under Article 2 of the Convention did not suffice in this respect. He had not mentioned the relevant criteria in respect of these specific complaints and had not advanced any arguments. He had not even elaborated on these aspects in his factual description of the investigation in his submissions.

147. The applicant asserted that he had exhausted domestic remedies as required by Article 35 § 1 of the Convention. He had raised the complaints that he was now invoking before the Court at least in substance before the domestic courts. Both in his motion to compel public charges and in his constitutional complaint he had described in detail the course and duration of the investigation and alleged that it had suffered from several deficiencies, referring to the obligation under Article 2 of the Convention to conduct an effective investigation. The Federal Constitutional Court was in a position to rule on the complaints made by the applicant. The situation was similar to that in Hentschel and Stark v. Germany (no. 47274/15, 9 November 2017).

2. The Court's assessment

148. The Court reiterates that the purpose of the exhaustion rule is to afford a Contracting State the opportunity of addressing, and thereby preventing or putting right, the particular Convention violation alleged against it. It is true that under the Court's case-law it is not always necessary for the Convention to be explicitly raised in domestic proceedings, provided that the complaint is raised “at least in substance”. This means that the applicant must raise legal arguments to the same or like effect on the basis of domestic law, in order to give the national courts the opportunity to redress the alleged breach. However, as the Court's case-law bears out, to genuinely afford a Contracting State the opportunity of preventing or redressing the alleged violation requires taking into account not only the facts but also the applicant's legal arguments for the purposes of determining whether the complaint submitted to the Court has indeed been raised beforehand, in substance, before the domestic authorities. That is because “it would be contrary to the subsidiary character of the Convention machinery if an applicant, ignoring a possible Convention argument, could rely on some other ground before the national authorities for challenging an impugned measure, but then lodge an application before the Court on the basis of the Convention argument” (see, among other authorities, Radomilja and Others v. Croatia [GC], nos. 37685/10 and 22768/12, § 117, ECHR 2018, with further references).

149. Where the applicant complains of the lack of an effective criminal investigation under the procedural limb of Article 2 or 3 of the Convention, it is sufficient, in order to comply with Article 35 § 1 of the Convention, including with regard to legal arguments not explicitly raised at the domestic level, if the applicant has challenged the effectiveness of that investigation before the competent domestic court and, by describing the course and duration of the investigation and subsequent court proceedings in detail, referred to the relevant factual elements for that court to assess the investigation's effectiveness (compare Hentschel and Stark, cited above, §§ 64 and 66). In this respect, the Court reiterates that compliance with the procedural requirement of Article 2 is assessed on the basis of several essential parameters, which are inter-related and which, taken jointly rather than separately, enable the degree of effectiveness of the investigation to be assessed (see Mustafa Tunç and Fecire Tunç v. Turkey [GC], no. 24014/05, § 225, 14 April 2015).

150. In the present case, it is not disputed that the applicant challenged the effectiveness of the investigation before the Federal Constitutional Court and that he made references to the procedural obligation under Article 2 of the Convention. It is, by contrast, in dispute between the parties whether, in the factual description of the investigation and court proceedings in his submission to the Federal Constitutional Court, he sufficiently elaborated on certain aspects which he alleged to be flaws of the investigation in his application before the Court.

151. The Court observes that the applicant described in his constitutional complaint the on-site assessment performed by the team of PRT Kunduz in the aftermath of the airstrike, the report of the German military police as well as the course of the investigations undertaken by the German prosecution authorities. He thus referred before the Federal Constitutional Court to the relevant factual elements in respect of his allegations about delays with the on-site assessment by the German military contingent in the aftermath of the airstrike, the lack of independence of the persons involved in it, the delay in opening the formal criminal investigation, and the ineffectiveness of the preceding preliminary investigations. The Court finds that the applicant thus referred before the Federal Constitutional Court to the relevant factual elements regarding the above aspects, such as to enable that court to assess the effectiveness of the investigation. The Government's objection of non-exhaustion of domestic remedies must therefore be dismissed in respect of those aspects.

152. By contrast, the applicant's constitutional complaint did not refer to the alleged lack of independence of the investigation in Germany. The Court considers that it can be left open whether the applicant exhausted domestic remedies in respect of this specific argument, because it is in any event inadmissible as being manifestly ill-founded. The Court considers that the interaction between the Federal Ministry of Defence and the Dresden Public Prosecutor General in the context of the preliminary investigation carried out by the latter (see paragraph 30 above) was from the outset incapable of affecting the independence of the investigation, given that the Federal Prosecutor General, who had commenced a preliminary investigation on 8 September 2009 (see paragraph 30 above), had exclusive competence for the investigation and prosecution of offences under the Code of Crimes against International Law and that the Dresden Public Prosecutor General was obliged by law to transfer the investigation concerning Colonel K.'s liability for offences under that code to the Federal Prosecutor General without delay (see paragraph 101 above). There are no indications that the Federal Ministry of Defence tried to influence or interfere with the Federal Prosecutor General's investigation. Moreover, a lack of independence cannot be deduced from the abstract possibility for the Federal Ministry of Justice to issue binding directives to the Federal Prosecutor General, it being undisputed that no such directives were issued in the present case (see Mustafa Tunç and Fecire Tunç, cited above, § 222).

1. The applicant

156. The right not to be arbitrarily deprived of one's life also applied in times of armed conflict, as did the obligation to effectively investigate under the procedural limb of Article 2 of the Convention. International humanitarian law was already taken into account in Article 15 § 2 of the Convention and did not apply here. However, even if international humanitarian law had applied in the present case, the investigation still had to live up to the standards of international humanitarian law and international human rights law in terms of independence, impartiality, thoroughness, effectiveness, promptness and transparency. The normal Convention standards did not disappear even if the Convention was interpreted in the light of international humanitarian law.

157. The investigation in the present case was ineffective because (i) it had not been conducted by sufficiently independent persons; (ii) the evidence gathered was one-sided and insufficient investigative measures had been taken to establish the facts, with surrounding circumstances not investigated at all; (iii) the investigation had not been instituted promptly and had not been conducted with reasonable expedition; and (iv) the applicant as a next-of-kin had not been sufficiently involved.

1. The Governments of France, Norway and the United Kingdom

193. The intervening Governments asserted that the procedural obligation under Article 2 as applied to situations of armed conflict outside national territory had to be interpreted in a manner consistent with international humanitarian law, which constituted lex specialis. This concerned not only the threshold issue when the duty to investigate arose, but also the content of such a duty. As to the latter, the Government of the United Kingdom emphasised that Article 6 of Additional Protocol II was essentially limited to prosecutorial obligations of independence and did not contain a broader reference to transparency requirements or the involvement of next-of-kin. With respect to the requirement of independence, the Governments of France and the United Kingdom further elaborated on the special role assigned to commanders in the conduct of investigations under international humanitarian law and submitted that the lex specialis obligations as regards the specific investigative duties of commanders would be disavowed if the procedural obligations under Article 2 were to be interpreted so as to require the exclusion from investigations of military commanders.

194. The intervening Governments submitted that the practical realities of military deployments had to be considered. These could include the housing of those investigating, such as military police, jointly with other members of the military contingent; the investigators having a certain hierarchical or institutional link with the military leadership responsible for the operation; and the impact of limited resources on the promptness and number of investigatory steps, especially in respect of smaller Contracting States and contingents. The Governments of France and the United Kingdom pointed to the legal constraints imposed by the legal framework of the UN and the ISAF mission, as well as Afghan law, notably that German prosecution authorities were not allowed to conduct investigations in Afghanistan.

195. The Governments of France and the United Kingdom added that it followed from State practice that States considered that “lawful acts of war”, referred to in Article 15 of the Convention, derogated from Article 2, even in the absence of prior notification of derogation.

2. The Human Rights Centre of the University of Essex, the Open Society Justice Initiative, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch (UK)

196. The Human Rights Centre of the University of Essex asserted that international humanitarian law became applicable on the basis of objective criteria. Where it was applicable and a State chose to invoke international humanitarian law, the concurrent application of international humanitarian law and human rights law may result in a significant modification of the content of human rights law obligations of the State. Where a State chose not to invoke international humanitarian law, the Court should acknowledge that it was applicable, while noting that the State had chosen to be examined exclusively on the basis of human rights law. For the State to invoke international humanitarian law, it was sufficient that it was applicable and that the respondent State invoked it before the Court; a derogation was unlikely to be required in international armed conflict and may not be required in extraterritorial non-international armed conflict. Where the concurrent application of international humanitarian law did not result in a modification of a relevant human rights law rule, a human rights body may draw upon international humanitarian law to confirm a human rights analysis, without a need for the State to invoke international humanitarian law. The Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano emphasised that reliance on international humanitarian law required very careful consideration in order not to contradict Article 15 of the Convention, in particular.

197. The Human Rights Centre of the University of Essex submitted that international humanitarian law required, in respect of the use of force, that everything feasible be done to verify that the objectives to be attacked were military objectives. There was an obligation under international humanitarian law to investigate suspected violations, with the Guidelines on investigating violations of IHL elaborating on the respective standards. The Open Society Justice Initiative, the Institute of International Studies of the Università Cattolica del Sacro Cuore di Milano and Rights Watch (UK) argued that the standards developed in international human rights law regarding the duty to investigate into civilian deaths during armed conflict should not be lowered by reference to international humanitarian law.

1. The relevant general principles

198. In the domestic proceedings the situation in which the airstrike that killed the applicant's two sons occurred was qualified as a non-international armed conflict for the purposes of international humanitarian law. While acknowledging that Germany had not availed itself of its right of derogation under Article 15 of the Convention, the Government submitted that international humanitarian law provided the appropriate yardstick for determining what was required from the respondent State in the circumstances, in line with the Court's approach in the Hassan case.

199. The Court notes that there is no substantive normative conflict in respect of the requirements of an effective investigation between the rules of international humanitarian law applicable to the present case (see paragraphs 82 and 84-85 above) and those under the Convention. The Court can therefore confine itself to examining the facts of the present case 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 international humanitarian law when interpreting and applying the Convention in the absence of a formal derogation under Article 15 of the Convention are met (see Hassan, cited above, §§ 98 et seq.).

200. Reiterating that the procedural duty under Article 2 must be applied realistically (see Al-Skeini and Others, cited above, § 168), the Court considers that the challenges and constraints for the investigation authorities stemming from the fact that the deaths occurred in active hostilities in an (extraterritorial) armed conflict pertained to the investigation as a whole and continued to influence the feasibility of the investigative measures that could be undertaken throughout the investigation, including by the civilian prosecution authorities in Germany. Accordingly, the standards applied to the investigation conducted by the civilian prosecution authorities in Germany should be guided by those established in respect of investigations into deaths in extraterritorial armed conflict, as set out in Al-Skeini and Others (cited above, §§ 163-167) and restated in Jaloud (cited above, § 186).

201. What form of investigation will achieve the purposes of Article 2 may vary depending on the circumstances. However, whatever mode is employed, the authorities must act of their own motion once the matter has come to their attention (Al-Skeini and Others, cited above, § 165).

202. In order to be “effective”, as this expression is to be understood in the context of Article 2 of the Convention, an investigation must firstly be adequate (see Ramsahai and Others v. the Netherlands [GC], no. 52391/99, § 324, ECHR 2007-II, and Armani da Silva, cited above, § 233). This means that it must be capable of leading to the establishment of the facts, a determination of whether the force used was justified in the circumstances and of identifying and – if appropriate – punishing those responsible (see Armani da Silva, cited above, § 233; Mustafa Tunç and Fecire Tunç, cited above, § 172; and Al-Skeini and Others, cited above, § 166). This is not an obligation of result, but of means (see Nachova and Others v. Bulgaria [GC], nos. 43577/98 and 43579/98, § 160, ECHR 2005‑VII; Al-Skeini and Others, cited above, § 166; and Mustafa Tunç and Fecire Tunç, cited above, § 173). The authorities must take whatever reasonable steps they can to secure the evidence concerning the incident, including, inter alia, eyewitness testimony, forensic evidence and, where appropriate, an autopsy which provides a complete and accurate record of injury and an objective analysis of the clinical findings, including the cause of death. Any deficiency in the investigation which undermines its ability to establish the cause of death or the person responsible will risk falling foul of this standard (see Armani da Silva, cited above, § 233, and Al-Skeini and Others, cited above, § 166).

203. In particular, the investigation's conclusions must be based on a thorough, objective and impartial analysis of all relevant elements, failing which the investigation's ability to establish the circumstances of the case and the identity of those responsible will be undermined to a decisive extent (see Kolevi v. Bulgaria, no. 1108/02, § 201, 5 November 2009, and Armani da Silva, cited above, § 234). Nevertheless, the nature and degree of scrutiny which satisfy the minimum threshold of the investigation's effectiveness depend on the circumstances of the particular case. The nature and degree of scrutiny must be assessed on the basis of all relevant facts and with regard to the practical realities of investigation work (see Velcea and Mazăre v. Romania, no. 64301/01, § 105, 1 December 2009, and Armani da Silva, cited above, § 234). It is not possible to reduce the variety of situations which might occur to a bare check-list of acts of investigation or other simplified criteria (see Tanrıkulu v. Turkey [GC], no. 23763/94, §§ 101-110, ECHR 1999-IV; Velikova v. Bulgaria, no. 41488/98, § 80, ECHR 2000‑VI; and Mustafa Tunç and Fecire Tunç, cited above, § 176).

204. It is clear that where the death to be investigated under Article 2 occurs in circumstances of generalised violence, armed conflict or insurgency, obstacles may be placed in the way of investigators and, as the United Nations Special Rapporteur on extrajudicial, summary or arbitrary executions has also observed, concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed (Al-Skeini and Others, cited above, § 164; see also Bazorkina v. Russia, no. 69481/01, § 121, 27 July 2006). Nonetheless, the obligation under Article 2 entails that, even in difficult security conditions, all reasonable steps must be taken to ensure that an effective, independent investigation is conducted into alleged breaches of the right to life (see Al-Skeini and Others, cited above, § 164).

205. The investigation should also be broad enough to permit the investigating authorities to take into consideration not only the actions of the State agents who directly used lethal force but also all the surrounding circumstances, including such matters as the planning and control of the operations in question, where this is necessary in order to determine whether the State complied with its obligation under Article 2 to protect life (as in Al-Skeini and Others, cited above, § 163). This will require an adequate interrogation of the members of the armed forces prima facie involved in the incident (see Aktaş v. Turkey, no. 24351/94, § 306, ECHR 2003-V (extracts)).

206. For an investigation into alleged unlawful killing by State agents to be effective, it may generally be regarded as necessary for the persons responsible for and carrying out the investigation to be independent from those implicated in the events. This means not only a lack of hierarchical or institutional connection but also a practical independence (see Armani da Silva, cited above, § 232, and Al-Skeini and Others, cited above, § 167).

207. A requirement of promptness and reasonable expedition is implicit in this context. It must, however, be accepted that there may be obstacles or difficulties which prevent progress in an investigation in a particular situation. That said, a prompt response by the authorities in investigating a use of lethal force may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of collusion in or tolerance of unlawful acts (see Armani da Silva, cited above, § 237, and Al-Skeini and Others, cited above, § 167).

208. There must also be a sufficient element of public scrutiny of the investigation, the degree of which may vary from case to case. The investigation must be accessible to the victim's family to the extent necessary to safeguard their legitimate interests (see Armani da Silva, cited above, § 235, and Al-Skeini and Others, cited above, § 167). However, the investigative materials may involve sensitive issues and disclosure cannot be regarded as an automatic requirement under Article 2 (see Giuliani and Gaggio, cited above, § 304; McKerr v. the United Kingdom, no. 28883/95, § 129, ECHR 2001-III; and Armani da Silva, cited above, § 236). Moreover, Article 2 does not impose a duty on the investigating authorities to satisfy every request for a particular investigative measure made by a relative in the course of the investigation (see Velcea and Mazăre, cited above, § 113; Ramsahai and Others, cited above, § 348; and Armani da Silva, cited above, § 236). The outcome of the investigation must be duly brought to the attention of the next-of-kin (see Damayev v. Russia, no. 36150/04, § 87, 29 May 2012).

209. The adequacy of the investigative measures, the promptness of the investigation, the involvement of the deceased person's family and the independence of the investigation are inter-related and each of them, taken separately, does not amount to an end in itself. They are criteria which, taken jointly, enable the degree of effectiveness of the investigation to be assessed. It is in relation to this purpose of an effective investigation that any issues must be assessed (see Mustafa Tunç and Fecire Tunç, cited above, § 225).

210. Article 2 does not entail the right to have third parties prosecuted or convicted for a criminal offence (see Mustafić-Mujić and Others, cited above, § 117, and Armani da Silva, cited above, § 238). To date, the Court has not faulted a prosecutorial decision which flowed from an investigation which was in all other respects Article 2 compliant (see Armani da Silva, cited above, § 259) nor required the competent domestic court to order a prosecution if that court had taken the considered view that application of the appropriate criminal legislation to the known facts would not result in a conviction (see Mustafić-Mujić and Others, cited above, § 123).

2. Application to the present case