Practice Relating to Rule 14. Proportionality in Attack
Section C. Information required for judging proportionality 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:
Criminal responsibility under § 211 StGB [i.e. for murder under Germany’s Penal Code]
Colonel (Oberst) Klein’s actions were lawful under international law and therefore justified under domestic criminal law …
Even considering the fact that the bombing killed civilians to be protected under the international law of armed conflict, the order to attack was lawful under international law.
… International humanitarian law … prohibits … attacks … against a military objective if at the time of the order to attack the anticipated civilian damage is out of proportion (“excessive” see Art. 51 para. 5 sub-para. b AP [1977 Additional Protocol] I) to the anticipated concrete and direct military advantage (see ICRC Customary International Humanitarian Law, 2005 – hereafter ICRC Customary IHL [Study] – p. 46ff). …
The anticipated civilian collateral damages are also to be assessed from the perspective of the attacker at the time of the attack, rather than with hindsight according to the actual unfolding of events (see also the wording of Art. 51 para. 5 sub-para. b AP I … “may be expected” ; ICRC Customary IHL [Study] p. 50 …). The Federal Republic of Germany has, like a number of other States …, particularly emphasized this fact when it ratified the  Additional Protocols to the Geneva Conventions by making a declaration … Only if a commander refrained from taking feasible precautions in violation of international law (“feasible precaution“; see. Art. 57 para. 2 sub-para. a AP I; ICRC Customary IHL [Study] p. 51 ff.) and such precautions would have led to the anticipation of greater civilian collateral damage which then in fact materialized is this relevant for an analysis of the proportionality of an attack. … In view of the circumstances known to Colonel (Oberst
) Klein (distance to inhabited settlements, night time, presence of armed Taliban) and the informant’s statements, he considered the presence of protected civilians unlikely … Further feasible reconnaissance and precautionary measures (“feasible precautions”) were not promptly available in the concrete situation. Colonel (Oberst
) Klein did not have to accept the danger of the fuel tankers or the fuel being retrieved by the Taliban … The international law of armed conflict requires that in case of doubt a person is to be considered a civilian (see Art. 50 para. 1 sentence 2 AP I). However, there is no such case of doubt if – as is the case here – there are sufficient indications, considering the concrete circumstances, that the persons concerned are a legitimate objective of a military attack; absolute certainty is not necessary.
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.