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MIL OSI Translation. Region: Germany / Deutschland –

Source: The Federal Constitutional Court press release No. 106/2020 of December 16, 2020, Decision of November 18, 20202 BvR 477/17

With a decision published today, the 2nd Chamber of the Second Senate of the Federal Constitutional Court did not accept a constitutional complaint against the civil court’s refusal of official liability claims against the Federal Republic of Germany, most recently by the Federal Court of Justice. In September 2009, numerous civilians were also killed or injured in an air strike in Kunduz (Afghanistan) ordered by a colonel in the Bundeswehr. The complainants brought – unsuccessfully in all instances – a lawsuit against the Federal Republic of Germany as relatives of victims killed in the air raid and asserted official liability claims. The Chamber states that the refusal of claims resulting directly from international law and the denial of a breach of official duties are constitutionally unobjectionable. However, the chamber left it open as to whether the legislature can generally exclude the granting of official liability, compensation or compensation claims in the event of fundamental rights violations.

The facts of the case: The complainants object to the dismissal of their official liability suits by the civil courts, ultimately by the Federal Court of Justice. After the fall of the Taliban regime in Afghanistan, the United Nations Security Council set up an international security support force (International Security Assistance Force – ISAF). On December 22, 2001, the German Bundestag decided to allow German armed forces to participate in ISAF troops. On September 3, 2009, a group of Taliban fighters seized two tank trucks in Kunduz. When the responsible Colonel i. G. received the information about the hijacking of the tanker truck, he requested air support from two US fighter planes. He was repeatedly confirmed by an informant from the military that there were only insurgents and no civilians near the trucks, whereupon he gave the order to drop the bomb. Both tankers were destroyed as a result and numerous people, including civilians, were killed or injured. The complainants filed a lawsuit against the Federal Republic of Germany and, as relatives of the victims, sought compensation for pain and suffering and damages. In its judgment of October 6, 2016, the Federal Court of Justice rejected the complainants’ appeal, in particular on the grounds that an individual claim for damages could not be derived from international law and that German official liability law (Section 839 BGB in conjunction with Article 34 GG) did not cover damages Apply that would be inflicted on foreign citizens during an armed deployment of German armed forces abroad. In addition, there is no breach of official duty by the responsible Colonel i. G. Main considerations of the Chamber: 1. Under constitutional law it is not objectionable that the Federal Court of Justice has denied claims for compensation and compensation directly from international law. Secondary law claims against foreign nationals due to acts of a state contrary to international law are generally only available to the home country of the injured party as the original subject of international law. There is no general rule of international law according to which individuals should also be entitled to claims for damages or compensation against the responsible state in the event of violations of international humanitarian law. In particular, neither Article 3 of the IV Hague Convention nor Article 91 of the Additional Protocol to the Geneva Convention of August 12, 1949 on the Protection of Victims of International Armed Conflicts of June 8, 1977 justify individual claims for damages or compensation in the event of violations of international humanitarian law .2. The denial of claims from expropriation-like encroachment and sacrifice also does not meet any constitutional concerns. Both legal institutions were developed through case law for matters of everyday administrative action and are not applicable to war damage that is not the result of regular administrative activity. On the other hand, it does not appear to be ruled out that the Federal Court of Justice misjudged the meaning and scope of Article 2, Paragraph 2 and Article 14, Paragraph 1 of the Basic Law when it made public liability claims (§ 839 BGB in conjunction with Article 34 GG) as a result of the operations of the Bundeswehr abroad has generally denied. A) In view of the fundamental binding of all German state power to fundamental rights, which also applies to actions abroad, the judgment raises doubts in this regard. Liability for state injustice is not only a manifestation of the principle of legality, but also a result of the fundamental rights concerned, which form the central point of reference for state liability obligations. The fundamental rights not only protect against unjustified interference by the state in the freedom and equality of citizens and are in this respect the basis of injunctive relief and removal claims that ensure the integrity of the fundamental rights guarantees. Where this is not possible, they – and not solely from the simple law based on a political decision of the legislature – generally also result in compensation claims, be it as compensation, be it as compensation or compensation. Such a link to the state’s unlawful liability is now a general legal principle in the European legal area. This is due to the primacy of the constitution for the reasons given by the Federal Court of Justice that could speak against the application of the official liability law to foreign missions of the Bundeswehr, in particular the impairment of Germany’s ability to form an international alliance and the limits of judicial training, not questioned. G. has denied. Whether there is a breach of official duty by German soldiers in an armed conflict is determined by the constitution, the Soldiers Act and, above all, the violence-limiting rules of international humanitarian law. Not every killing of a civilian in the course of armed conflicts is also a violation of this. According to the judgment, this is not the case because prior to the order to drop the bomb it could not have been ruled out that civilians were also in the target area. The Colonel i. G. the Bundeswehr had exhausted the sources of knowledge available to it when issuing the attack order, made a valid forecast decision in the necessary ex ante consideration and thus committed no breach of official duty. This appraisal is understandable and in any case does not violate the prohibition of arbitrariness in Article 3 (1) of the Basic Law.

MIL OSI

EDITOR’S NOTE: This article is a translation. Apologies should the grammar and / or sentence structure not be perfect.

MIL Translation OSI