There are certainly differing opinions on this issue among legal experts. The fact is there has never been a decisive court ruling in Germany on whether, under current German law, individuals can file claims for damages against countries at war.
Kunduz is Popal's biggest case. For the German Defense Ministry, it's an enormous nightmare, both politically and in terms of the image problems it created. If there is one thing that the tragic incident has made clear, it is that there is no longer such a thing as a clean German war in Afghanistan.
At the behest of German Colonel Georg Klein, American F-15 fighter jets dropped two 500-pound bombs in the night between Sept. 3 and 4, 2009. The bombs destroyed two tanker trucks that had been hijacked by Taliban fighters. Many people died that night, including civilians who had come to the scene to siphon off gasoline from the trucks. The exact number of casualties is still unclear today. According to the Afghan government, 30 civilians were killed. The International Red Cross puts the number at 74, Amnesty International at 83 and the International Organization for Migration (IOM) at about 95. Popal says that 113 civilians were killed.
All discrepancies aside, it is beyond dispute that the bombing that night in Kunduz was the bloodiest attack German soldiers had ordered since World War II. But now, months later, it seems that the incident is being downplayed and portrayed as something of a minor offence. A $5,000 case, if you will.
A Year of Waiting
On Sept. 4, it will have been one year since those bombs were dropped in Kunduz. It was a year in which the dead were buried in the villages, a year of survivors waiting for something to happen in Germany. It was a year in which German authorities failed to find a way to react, quickly and appropriately, to the fatal mistake of a German colonel. And it was a year in which Kunduz became a precedent for how Germany deals with the civilian casualties of a war.
After receiving an alarming phone call from Kunduz on Sept. 4, Popal became the first attorney to attend to the victims. Popal is 53 and owns a small law firm in the northern German city of Bremen. He specializes in asylum and immigration law, perhaps because these are the areas of the law that affect his own life. Popal was born in Afghanistan and raised in Kabul. His father was a governor and finance minister under the former Afghan king. In 1978, after the communist coup, Popal left Afghanistan for Germany, where he eventually became an attorney in the relatively quiet city of Bremen. It didn't seem as if Popal would ever play a role in world politics again.
Perhaps he felt that it was his duty to take on the case. It undoubtedly flattered his vanity. This was bigger than Bremen, the kind of case that lawyers dream of. And wasn't he the best man for the job? A German-Afghan solving a German-Afghan problem?
As it turned out, Popal had stumbled into a political scandal, one that he believed he could master with the tools of the law. But the whole thing soon turned into a game of poker, or perhaps a boxing match.
Lack of Identification
Popal flew to Kunduz several times in the fall. He set up a research team that included a former provincial member of parliament, a female gynecologist, a mullah and the district chief of Chahar Dara. Their task was to assemble a list of the victims. But the dead were long buried, and there are no birth certificates or death certificates in Afghanistan. Many of the villagers had no form of identification whatsoever. And how were they to determine who was a civilian and who was a Taliban fighter? Popal's team gathered all the documentation they could find: voting cards, driver's licenses, family photos and witness statements. He had the victims' families issue powers of attorney. Most of them signed the documents with a fingerprint.
While he was in Bremen between two of his trips to Kunduz, Popal received an email from an attorney in Berlin. The lawyer, whose name was Markus Goldbach, he wrote that he wanted to become involved in the case, together with two experienced colleagues. Knowing that he could use the support, Popal contacted Goldbach, and before long there were four lawyers handling the Kunduz case: Popal, Goldbach, the Frankfurt-based lawyer Oliver Wallasch and the Berlin-based lawyer Andreas Schulz.
On Dec. 3, Defense Minister Karl-Theodor zu Guttenberg addressed the German parliament, the Bundestag, and said that the attack was "militarily disproportionate." On Dec. 7, the German government announced that it intended to compensate the families of the civilian casualties. The burly man from the Defense Ministry contacted Popal and his team of attorneys to propose talks.
The case was looking good for Popal and his group, and they hoped that it could quickly be brought to an end.
But that wasn't what happened. Instead, a dispute ensued that continues to affect the case today. This is astonishing, because it is a case that touches on some very important issues: world politics, Afghanistan, the Bundeswehr and the war. In the end, however, the pace was set by something exceedingly mundane: incompatibility among the attorneys.