Practice Relating to Rule 15. The Principle of Precautions in Attack
Section D. Information required for deciding upon precautions in attack
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 VStGB [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.
The Federal Prosecutor General also stated:
C. Assessment of the evidence
Colonel (Oberst) Klein had no reason to doubt the correctness of the statements by the informant [that no civilians were near the fuel tankers]. …
Lastly, the individual orders by Colonel (Oberst
) Klein concerning the arrangement of the military processes also show that he was at all times keen to avoid any civilian victims. Therefore, he ordered that the source was called at least seven times in order to explicitly ask who was present on the ground. He did not give these orders because he had doubts about the credibility of the source’s previous statements. Rather, he endeavoured to constantly double-check his understanding of the situation and to exclude that in the meantime had civilians moved to the tankers. Only after he was sure that the source’s statements corresponded to the video pictures transmitted by the aircrafts and that no further information from other sources was to be expected, did he decide to drop bombs on the fuel tankers.
In an explanatory memorandum submitted to the German Parliament in 1990 in the context of the ratification procedure of the Additional Protocols, the German Government stated:
Article 57 [of the 1977 Additional Protocol I] contains high requirements for military commanders. They can only evaluate the situation on the basis of facts at their disposal during the planning and execution of an attack. Military commanders cannot be held responsible on the basis of facts they did not know, and could not have known, and which became only clear afterwards.
Upon ratification of the 1977 Additional Protocol I, Germany stated:
It is the understanding of the Federal Republic of Germany that in the application of the provisions of Part IV, Section I, of Additional Protocol I, to military commanders and others responsible for planning, deciding upon or executing attacks, the decision taken by the person responsible has to be judged on the basis of all information available to him at the relevant time, and not on the basis of hindsight.