Turning to the merits, Mr. Hanan alleges a breach of the procedural limb of Article 2 and Article 13 of the ECHR. This post confines itself to a few short observations on the breach of the duty to investigate. The Court has demanded again and again that in a situation in which a person has been killed through the use of force, a prompt, effective and impartial investigation must follow. This investigation must be capable to determine whether the use of force was justified or not in the specific circumstances of the case. In Hanan, the ECtHR will have to decide whether the investigation was effective; whether it was prompt enough; whether Mr. Hanan was sufficiently involved in the investigation; and whether the German authorities were independent enough.
How does the Court assess whether the requirements were met? As a ground rule, the duty to investigate also applies “in difficult security conditions, including in a context of armed conflict.” (Al-Skeini, para. 164). At the same time, the Court acknowledges that “concrete constraints may compel the use of less effective measures of investigation or may cause an investigation to be delayed” (ibid.). In Jaloud, the GC reiterated that it “is prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they employment database were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population (…) clearly included armed hostile elements” (para. 226). This consideration applies to the Hanan situation as well and seems to allow the States a certain leeway in the conduct of the investigation. But the GC then concludes that the failings of the investigation in Jaloud, even when taking the particular difficulties in account, “cannot be found [to be] inevitable” (para. 227). In fact, this is a rather strict standard imposed by the Court. In contrast, the joint concurring opinion in Jaloud is less strict. The seven (!) judges underline twice the Court’s jurisprudence that “circumstances may compel the use of less effective measures of investigation” (paras. 4 and 6). Consequently, they only find one violation and not four violations as the majority (see also here).
No matter which yardstick the Court will apply, it has good reasons to hold that Germany has not fulfilled its duty to investigate, especially with regard to promptness and independence. Inter alia, the Battle Damage Assessment team that carried out initial military investigation was set up by the same officer who ordered the strike, Colonel K. The team arrived at the scene eleven hours after the airstrikes (see here, p. 70), although ISAF rules call for a two-hour period. Another investigation was conducted by the German military police. However, the German RC commander explicitly ordered the officer who led the investigation to support Colonel K. in the follow up to the airstrikes (see here, p. 77). One also has to doubt the effectiveness of the investigation as no interviews with eye-witnesses, like the pilots – who in vain urged the German colonel to show force before striking – the surviving tanker-driver or relatives of the victims took place.