German High Court denies compensation to victims of NATO attack on bridge of Varvarin based on international law and German law
On May 30, 1999, NATO F-16 warplanes attacked a bridge crossing the Velika Morava river in Varvarin in central Serbia. Because of a holiday, many people were nearby, at least of ten of whom were reportedly killed in the attack. NATO declared the bridge to be a legitimate military target and refused to release the nationality of the attacking planes.
Germany was one of the NATO countries involved in the Kosovo conflict, though no German airplanes were directly involved in the attack at issue. The involvement of German airplanes in support of the attack is in dispute. A total of 35 Serbian victims and their respective estates brought action in Germany, seeking compensation for the attack.
The Plaintiffs argue that the attack violates humanitarian international law as well as the German liability law for official acts [Amtshaftungsgesetz]. Further, the Plaintiffs allege that Germany should have used its veto within NATO to prevent an attack on that bridge. Finally, German forces allegedly supported the attack by observing and protecting the air space.
The German trial court [Landgericht], as well as the State Supreme Court Cologne [Oberlandesgericht Koln], dismissed the case. The Plaintiffs appealed to the German High Court [Bundesgerichtshof].
The German High Court affirms. The Plaintiffs' compensation claims based on international law must be rejected because any compensation and reparations would be payable to the Nation at issue, not individuals. The German High Court had confirmed this in the prior Distomo decision, and finds it confirmed in Section 91 of the June 8, 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, relating to the Protection of Victims of International Armed Conflicts. Thus, the Court does not address to what extent Germany would be liable for a violation of international law based on its mere participation in NATO operations.
Neither does the German law on liability for official acts [Section 839 of the Civil Code (BGB) in connection with Article 34 of the Basic Law (GG)] provide for compensation in this case. The Court does not find any violations of humanitarian international law for the protection of civilians by German soldiers or German government institutions. German airforce did not directly participate in the attack. Furthermore, there is no indication that any German government agency was aware of the planned attack. Pursuant to NATO's "need to know"ť principle, the NATO member states only receive the information necessary for their own participation in particular operations.
There is no basis for liability even if German officials had participated in adding the bridge to the NATO list of targets. Military institutions have certain, necessary discretion in the conduct of their operations that is not subject to judicial review. Courts can only get involved if an action becomes wholly unreasonable or violations of international law are apparent. A bridge can be a legitimate military target in an armed conflict, and if NATO included it in its list of potential targets, the Court must presume that it is compliant with international law.
Therefore, the German High Court affirms the dismissal of the Serbian Plaintiffs' case.
Citation: Bundesgerichtshof [German High Court], Urteil vom 2. November 2006, III ZR 190/05; Bundesgerichtshof Mitteilung der Pressestelle Nr. 151/2006; the decision is available on the Court’s website juris.bundesgerichtshof.de; BBC News of May 30, 1999, published at 22.47 GMT, available at news.bbc.co.uk.
USA visa and immigration information is available at www.immigrationtelevision.com.
|
