Legal issues snarl German inquiry into airstrike colonel (1st Lead)

Nov 6, 2009, 11:46 GMT

   Berlin - One of two inquiries into an airstrike in Afghanistan in which dozens of civilians are thought to have died became snarled Friday in a legal question about what law applies.

   A military inquiry begun by NATO has suggested that German army Colonel Georg Klein overstepped his authority when he directed US fighter-bombers to blow up two hijacked fuel tankers, NATO sources in Brussels say.

   A separate legal inquiry in Germany meanwhile became a hot potato between federal and state prosecutors, who have not yet agreed if international law or German law applies to the case.

   Local prosecutors in Dresden, where Klein's regiment has its home base, have studied the case and said it was conceivable that international law defining war crimes and the legitimate use of force covered Klein. They asked federal prosecutors to take over the case.

   But the office of the federal prosecutor in Karlsruhe said it had not yet accepted the case.

   Germany is one of the few nations in the world where civilian courts, not a court martial, decide if actions by the military are right. Germany abolished courts martial after the Second World War. Even abroad, German citizens have to obey the German crime code.

So far, Berlin has not officially designated the Afghan conflict as a 'war' or 'armed conflict.' The Dresden prosecutors need to know if is one before deciding if Klein could be accused of murder.

   In a statement, they said it was 'conceivable' that an armed conflict in the legal sense was taking place and that the airstrike had been part of it.  'That would mean that military operations in conformity with international law and under the UN mandate are basically legitimate,' the statement said.

   In the German system, cases under international law would be up to federal prosecutors and courts, not state ones, to consider. The laws of war, which are part of international law, allow a lot more force to be used than is permitted under domestic criminal laws.

   In Karlsruhe, federal prosecutors said some people had already filed complaints with them against Klein, but these had not been acted on.

   'No evidence has been established to show any offence by German soldiers under international criminal law,' the federal prosecutor's office said in a statement, adding that it would take time to analyse the copious files on the case.

   Klein ordered the oil tankers, which had been captured by the Taliban, to be destroyed several kilometres away from his base in Kunduz region on September 4. Reports say villagers helping themselves to free fuel were killed as well.

   A report to Afghan President Hamid Karzai stated in mid-September that 30 civilians and 69 Taliban fighters were killed in the strike.

   The NATO report reportedly criticized the commander for ordering the strike, saying he should only have done so if his troops were in direct danger, which it judged was not the case.

   The issue has caused strain between Germany, which has loosened its rules so that its troops in Afghanistan can shoot back, and US General Stanley McChrystal, who is trying to bolster Afghan public support for his International Security Assistance Force (ISAF).

   German Defence Minister German Defence Minister Karl-Theodor zu Guttenberg was to present the NATO report to parliamentary officials in Berlin later on Friday.

   Defence Ministry officials had previously defended Klein, and denied that the NATO inquiry placed blame on the German troops.