Reparation Issues

31 August 2010 The Ministry of Defense meanwhile recognized 102 victims as result of the air strike of 4 September 2009, among them 91 persons killed. Without challenging this number, it can be stated that this represents a high number of affected persons, regardless of whether they are surviving members of families or injured victims. This group of affected people consists primarily of women and children who have lost their current or future breadwinner. Most of the deaths were men and boys, who went to the riverbank to get fuel from the tankers or who went just out of curiosity.

In order to give these families adequate compensation, so that they can survive by their own, negotiations took place between the lawyers Karim Popal and Bernhard Docke and the German government. The latter was generally open to pay compensation, as it has already done so in other cases in Afghanistan, of up to 33,000 USD. In the current case, however, they only offered 5,000 USD per victims' family.

The negotiation talks proceeded until March 2010, when the Ministry suspended them and tried itself to organize reparation payments circumventing the lawyers. In July 2010, talks were resumed; this time the lawyers' team was extended to include Reiner Geulen, Remo Klinger and Wolfgang Kaleck. These talks are still on-going, although the Ministry in the meantime had already decided about the condition of reparations and wanted to proceed itself in paying the previously announced sum of 5,000 USD per family. It is remarkable that the ministry approached the victims' families directly, since it is prohibited under German law to directly approach clients who are represented by a lawyer in order to reach an agreement. This prohibition is based on a number of reasons, e.g. to ensure that clients are not put under undue pressure to agree to something without consulting their lawyers for legal expertise.

According to German civil law (article 839 of the German civil code in combination with article 34 of the German basic law) victims of illegal acts by German officials have the right to adequate compensation. These acts also include those by members of the German army that are in violation of German laws. To date, no court in Germany has ever ruled in last instance about the applicability of these rules during armed conflicts. Comparable rules in other countries are applicable without any doubt (e.g. U.S.A., U.K., France).

Currently, a case is pending before the German Constitutional Court about the attack on civilians during a NATO air campaign in the Serbian city Varvarin in 1999. The Court could rule on this question for the first time. A decision is expected this year. Whether the Kunduz victims will bring legal action against Germany will also depend on the outcome of this decision.