Turning to the investigation in Germany one again has to differentiate between the effectiveness of the investigation on the one hand and the independence of the investigators on the other hand. The Federal Public Prosecutor (Generalbundesanwalt), which led the civil investigations, equally failed to interview important eye-witnesses, such as the pilots, the tanker-driver or the next of kin, like Mr. Hanan. That the German Parliament’s commission of enquiry later interviewed the pilots and the tanker-driver does not make up for this omission but only shows the importance to interview eye-witnesses. This has also been underlined in the established case law of the ECtHR. Furthermore, the Federal Public Prosecutor is subject to directives of the German Ministry of Justice. Because of employment database this hierarchy, last year the European Court of Justice concluded that German prosecutors are not independent enough to issue a European arrest warrant (here, paras. 78-80). Thus, even if the Court should base its jurisdiction only on Güzelyurtlu, it would find violations of Germany’s duty to investigate.
As the airstrike near Kunduz was not fully investigated, falls within Germany’s jurisdiction, and is attributable to Germany, the Grand Chamber in Strasbourg should judge upon the merits and follow the applicant’s complaint. This would render justice to the airstrike’s victims, help protect human rights in situations of armed conflict outside Europe, and thus also strengthen European states’ legitimacy when acting extraterritorially.
Disclosure: during the author’s legal clerkship from 2009 to 2011, he worked for the European Center for Constitutional and Human Rights for nine months, which has represented Mr. Hanan since 2009. During this time, he was involved with the criminal complaint against Colonel K. and the request for a judicial decision in the framework of proceedings to force criminal proceedings (Klageerzwingungsverfahren).