If the Court were to rely on Güzelyurtlu, the issue of attribution would not be a problem, as the investigating authorities’ acts and omissions can only be attributed to Germany. Attribution, however, becomes tricky if the underlying act leading to the investigation, i.e. the airstrike, is decisive. In its controversial 2007 Behrami and Behrami v. France and Saramati v. France, Germany and Norway decision, the GC attributed the actions carried out by the named States in Kosovo to the UN. Yet in its 2011 Al-Jedda v. UK judgment, the GC arrived at a different conclusion, attributing the Iraqi deaths to the UK. The GC bases its differentiation of the two situations mainly on how “the international security presence in Kosovo was established by [UNSC] Resolution 1244” (para. 83). In this resolution, the UNSC “decide[d] on the deployment in Kosovo, under United Nations auspices, of international civil and security presences”; authorised “member States and relevant international organisations to establish the international security presence in Kosovo”; and decided that there should be “substantial North Atlantic Treaty Organization participation” in the security presence, which “must be deployed under unified command and control”.
Hanan compares largely with Al-Jedda, but not Behrami. The only similarity to Behrami lies in the fact that ISAF was established after the UNSC resolution was adopted. Just like in Al-Jedda, foreign troops were already in Afghanistan. Also, no civil UN presence was established in Afghanistan or Iraq; only in Kosovo. The wordings of the UNSC resolutions on employment database Afghanistan resemble those on Iraq, not Kosovo. While UNSC Resolution 1244 underlines that deployment in Kosovo takes place under “United Nations auspices,” such language is absent from the Iraq and Afghanistan resolutions. Also, the reporting duties differ. In Kosovo, the Secretary General, “represent[ing] the general interests of the UN” (Behrami, para. 134), is requested report to the UNSC (Resolution 1244, para 20). In both Iraq and Afghanistan, it is the States that are requested to report to the UNSC (see e.g. Resolution 1546, para. 31; Resolution 1833, para. 6). Lastly, “[NATO] participation […] under unified command and control” was foreseen in an annex to Resolution 1244. The ISAF resolutions neither contain such an annex, nor establish NATO participation or the need for unified command and control. Thus, the acts are attributable to Germany.
This result is supported by the Jaloud case, in which the GC does not engage with questions of attribution in detail, and does not even mention Behrami. While discussing “jurisdiction”, it underlines that the Dutch officers retained “full command” over their military personnel (para. 143) – which is a matter of attribution, as jurisdiction concerns control over the victims and attribution concerns control over acting personnel (Marko Milanović, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties, HRLR 2008, 446). Under the heading “Attribution”, the Court emphasizes that the “facts giving rise to the applicant’s complaints derive from alleged acts and omissions of Netherlands military personnel and investigative and judicial authorities” (para. 155). The same is true for Hanan: German officers equally retained “full command” and the facts giving rise to the applicant’s complaints derive from alleged acts and omissions of German military personnel and investigative and judicial authorities. Thus, comparing Jaloud with Hanan leads to the conclusion that the acts – and omissions – in question have to be attributed to Germany and the complaint is admissible.