Hanan v Germany: Grand Chamber confirms the extraterritorial application of the ECHR to German troops in Afghanistan

The Grand Chamber of the European Court of Human Rights has handed down its eagerly awaited judgment in Hanan v. Germany (App No. 4871/16), a case concerning the death of two children following a NATO airstrike (ordered by a German colonel) in the Kunduz region of Afghanistan in September 2009, and their father’s claim that Germany bore legal responsibility for their deaths. Germany had itself investigated the death of Mr. Hanan’s children.

The application raised significant questions surrounding the extraterritorial application of the European Convention, under Article 1 of the Convention. Mr. Hanan claimed that the Court had jurisdiction to hear the matter and that Germany had breached its investigative obligations under Article 2 of the Convention.

Mr. Hanan’s application was lodged with the Strasbourg Court on 13 January 2016, which relinquished jurisdiction in favour of its Grand Chamber on 27 August 2019.

A hearing was held on 26 February 2020, during which the Court heard submissions from the parties, as well as submissions on the jurisdiction question from: (i) the Government of the United Kingdom; (ii) the Government of France; and (iii) Rights Watch UK, represented by Sam Wordsworth QC (Essex Court Chambers), Can Yeginsu and Anthony Jones.

The Grand Chamber declared Mr. Hanan’s application to be admissible, making important findings on the question of jurisdiction. It considered the following factors – “special features” – justifying the extraterritorial application of the Convention in this case:

  • Under customary international humanitarian law, Germany was under an obligation to investigate the airstrike as it concerned the criminal responsibility of members of Germany’s armed forces for a potential war crime (at §137).
  • The Afghan authorities were prevented (as a matter of law) from instituting a criminal investigation against members of the German armed forces, pursuant to section I (3) of the ISAF Status of Forces Agreement (at §138).
  • The German prosecution authorities were required under domestic law to commence a criminal investigation and could only have dispensed with such an investigation if there had been an investigation before an international tribunal or by the Afghan authorities, both of which were not possible due to Germany’s retention of exclusive jurisdiction over its troops pursuant to the ISAF Status of Forces Agreement (at §139).
  • The offences punishable under German law are serious in natures, and the applicable law was adopted against the background of Germany’s ratification of the Rome Statute (at §140).

When combined, these ‘special features’ 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 of the Convention.

On the merits, the Grand Chamber held (unanimously) that the investigation conducted by the German authorities into the deaths had complied with Article 2, so there had been no violation of the Convention in the case.

Links to the Rights Watch UK (now Rights & Security International) written submissions before the Grand Chambers can be found here, a video of the its oral submissions can be found here. The judgment of the Grand Chamber is available here.