On 16 February 2021, the Grand Chamber of the European Court of Human Rights handed down its decision in Hanan v Germany.
The case concerned an airstrike in Kunduz, Afghanistan, ordered by a Colonel of the German contingent of the International Security Assistance Force (ISAF), commanded by NATO. The airstrike was ordered in respect of two fuel tankers thought to have been hijacked and surrounded by insurgents, but in fact surrounded by civilians. The airstrike killed 91 civilians, including the Applicant’s two sons, and also injured 11 civilians.
The Applicant contended that the investigations carried out by Germany into the death of his sons violated the requirements of the investigative component of Article 2 of the European Convention on Human Rights, the right to life.
The Grand Chamber found that Article 1 had been triggered and that Germany was under an obligation to investigate under Article 2. Pursuant to the Status of Forces Agreement with NATO, Germany had retained exclusive criminal jurisdiction over its troops deployed with the ISAF with respect to serious crimes. It was obliged to investigate any serious crimes committed by its troops under both international humanitarian law and domestic law. On that basis, the Grand Chamber held that there were “special features” which triggered the existence of a jurisdictional link for the purposes of Article 1 of the Convention in relation to the procedural obligation to investigate under Article 2.
The Applicant’s claim was not upheld on the merits. The Chamber observed that the German Federal Constitutional Court had reviewed the effectiveness of the investigation on the Applicant’s constitutional complaint. It noted that because the Federal Constitutional Court was able to set aside a decision by the Federal Prosecutor General to discontinue the criminal investigation in respect of the Colonel, the Applicant had at his disposal a remedy enabling him to challenge the effectiveness of the investigation.
The finding of jurisdiction in this case is significant and represents a material development in the international jurisprudence concerning the extraterritorial operation of human rights obligations owed by States, where those States undertake actions overseas, or deploy troops. However, like the ECtHR’s prior cases concerning jurisdiction (including Al-Skeini and Jaloud), Hanan concerns jurisdiction solely for the breach of the procedural limb of the right to life – not in respect of the substantive limb, being the violation of the right to life itself. In its finding, the ECHR has confirmed that, leaving aside the question of the underlying act, a State does have jurisdiction and an obligation under the Convention to investigate allegations in respect of its actions resulting in death, where International Humanitarian Law and domestic law similarly oblige it to so investigate.
The ECHR’s ruling can be found here.
Professor Dapo Akande appeared for the Applicant.
Sam Wordsworth QC appeared for Rights Watch (UK) as Intervener.