BACKGROUND: German airstrike throws up legal and political issues

Nov 26, 2009, 12:26 GMT

   Berlin - Germany's top soldier and a senior defence ministry official have resigned because of an airstrike ordered by the German army on two fuel tanker trucks hijacked by the Taliban in Afghanistan.

   The exact details of what happened on the night of September 4 near Kunduz may never be known but it seems the truck drivers were murdered. The stolen trucks later became bogged down in wet sand in a river bed.

   Villagers were apparently helping themselves to free fuel when German Colonel Georg Klein directed US fighter-bombers to blow up the trucks and the Taliban fighters aboard them. The pilferers were killed too.

   In what was probably the bloodiest military strike under German command since World War II, more than 100 people may have died.

   A report to Afghan President Hamid Karzai stated in mid-September that 30 civilians and 69 Taliban fighters were killed. An inquiry by NATO said a firm death toll would never be known, but quoted one account that as many as 142 - Taliban and villagers - were killed.

   The incident had wide political and legal ramifications.

   Germany's highest military officer, the inspector general, and a state secretary of the Defence Ministry both quit their jobs.

The positions of Wolfgang Schneiderhan and Peter Wichert became untenable after a revelation that the military received images the same day as the airstrike showing some of the dead were civilians, yet did not make this public.

   The incident increased German public misgivings about the German involvement in the International Security Assistance Force, the NATO- run army the opposes Taliban efforts to take over Afghanistan.

   NATO's report, which remains classified though its key conclusions are public, criticized Colonel Klein, concluding he overstepped his authority by not checking with ISAF's top command before the strike.

   It said he should only have ordered immediate tactical bombing if his own troops had been under fire.

   The German armed forces say Klein wanted the trucks destroyed because they were only a few kilometres from his base at Kunduz in northern Afghanistan and he feared the Taliban would use them as mobile bombs to kill his troops.

   Klein also faces a separate inquiry into whether he may have committed homicide or any other crime under German law.

   The modern German armed forces do not have courts martial, so the evidence is being collected by civilian prosecutors. However federal and state prosecutors have still not agreed on who has the final say.

   Local prosecutors in Dresden, where Klein's regiment has its home base, have studied the case and said it is conceivable that international law defining war crimes and the legitimate use of force protects Klein from prosecution, but even that is not yet settled.

  This is because Berlin has so far not officially designated the Afghan conflict as a 'war' or 'armed conflict.' Distinguishing Taliban fighters, who wear no uniform, from civilians has been one of the thorniest problems of the conflict.

   The airstrike led to strain between Germany, which has loosened its rules of engagement so that its troops in Afghanistan can shoot back at attackers, and ISAF's chief, US General Stanley McChrystal, who is trying to bolster Afghan public support for ISAF.

   A lawyer, Karim Popal, meanwhile says he plans to sue the German government on behalf of 78 relatives of people killed in the airstrike.