Practice Relating to Rule 1. The Principle of Distinction between Civilians and Combatants
Section B. Attacks against combatants
Germany’s Military Manual (1992) provides that military objectives include, in particular, armed forces.
Germany’s Soldiers’ Manual (2006) states: “Combat operations may only be directed against the armed forces of the enemy and other military objectives, not however against the civilian population or civilian objects.”
In 2010, in the Fuel Tankers case, the Federal Prosecutor General at Germany’s Federal Court of Justice investigated whether war crimes or other crimes under domestic law had been committed in the course of an airstrike which was ordered by a colonel (Oberst) of the German armed forces against two tankers transporting fuel for the International Security Assistance Force in Afghanistan stolen by the Taliban near Kunduz and which resulted in the deaths of a number of civilians. The Federal Prosecutor General stated:
Pursuant to § 170 para. 2 StPO [Penal Procedure Code], the investigation proceedings which were initiated by the order of 12 March 2010 against Colonel (Oberst
) Klein and Company Sergeant Major (Hauptfeldwebel
) Wilhelm due to suspected offences under the Stub [International Crimes Code] and other offences are to be terminated as a result of the investigations conducted and based on the sources of information set out hereafter and on the reasons given in detail hereafter.
In examining murder under Germany’s Penal Code, the Federal Prosecutor General also stated:
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law [hence not constituting murder] …
In the assessment of the lawfulness of military attacks in non-international armed conflict which result in the killing of persons, the victims’ status under the international law of armed conflict is of particular relevance. One must distinguish whether the victims are armed fighters of the adverse party, civilians directly participating in hostilities, or other civilians. Persons who belong to the first two categories are in principle legitimate targets of military attacks.
In 2010, in reply to a Minor Interpellation in the Bundestag (Lower House of Parliament) titled “Killing of German nationals by a US drone attack – Intervention of the German judiciary”, Germany’s Federal Government wrote:
15. How does the Federal Government evaluate the legality of acts of targeted killing of persons within the context of international and non-international armed conflicts …?
… [M]embers of the opposing armed forces (combatants) in international armed conflict and, in non-international armed conflict, members of organized armed groups exercising a continuous combat function may be lawfully targeted at all times as enemy fighters under international humanitarian law, including with the use of lethal force.