The Kundus Incidentt of 4 September 2009: Was the Aerial Attack Ordered by German Colonel Klein Lawful Under International Humanitarian Law?

Abstract

In its recent judgement of 11 December 2013 the Bonn Regional Court dismissed an action brought by the victims of aerial attack in Kundus ordered by German Colonel Klein on 4 September 2009. The Court did not support the notion of official misconduct, which would have made the Federal Republic liable. On the occasion, this article offers an analysis of the attack and assesses its lawfulness under International Humanitarian Law. The analysis is largely based on the published findings of a Parliamentary Inquiry Commission on the Kundus incident. It concurs with the Court´s finding that the two hijacked petrol tanker trucks posed indeed legitimate military targets, but it also opposes the Court´s view that all feasible measures for preventing harm to civilians were adopted. This article argues that numerous obligations under International Humanitarian Law were disregarded and that, in fact, an unlawful attack on civilians occurred.