Aug. 10, 2010 -- It's a hot Tuesday afternoon in Kunduz, more than eight months after the German-ordered deadly bombing of two hijacked trucks that had become stuck in a riverbed. Karim Popal, who is sitting cross-legged on the floor, tells his listeners that Germany intends to pay €4,000 (about $5,280) for each civilian killed in the Sept. 4, 2009 incident.
"Four thousand euros in compensation," says Popal, looking at the group. The room smells of carpet, men, feet and the dust from the street seeping in through the window.
Popal, who unlike his listeners is wearing socks, is surrounded by 15 men in Afghan traditional clothing. They are village elders from Chahar Dara, the district surrounding Kunduz. Most of them are Popal's clients.
"Four thousand euros is very little," says one man in the group.
Popal nods wearily.
The 15 men look at Popal. Four thousand euros. They know that he is their attorney, and that he's on their side, but somehow they had expected more.
'A Suitable Amount'
At around the same time in Berlin, a burly man with a short haircut is sitting in the German Defense Ministry. "I think that €4,000 or $5,000 is a suitable amount that's appropriate for the country," he says.
The burly man is wearing a brown leather vest, jeans and sandals. He looks like a bartender. He has only agreed to have this conversation under the condition that his name not be published. He spent months negotiating a compensation deal with Karim Popal and other attorneys. There was no agreement, just different ideas on what appropriate compensation should look like.
"The standard of living in Afghanistan is the key factor," says the burly man, leaning back in his chair. "We are talking about a foreign culture, and it's important not to provoke envy there."
Since that conversation, the Defense Ministry has settled on a number. Last Thursday, it announced that $5,000 each would be paid to the families of the victims. This meant that the Bundeswehr's biggest military mistake was only going to cost the German government half a million dollars.
For now, it is the last act in a months-long dispute over a single question: How much is a human life worth? More specifically, how much is an Afghan life worth? This question is the source of a dispute between the German Defense Ministry and the families of the victims, who are represented by a team of German attorneys working with Popal.
Not a Realistic Solution
When Popal was sitting on the ground on that Tuesday afternoon in Kunduz, speaking with the village elders, when he still believed that he could do something for them, he said: "I will ask for $33,000 for each person killed. I will write to the court in Germany, the regional court in Bonn. Then we'll have to see what happens."
The old men nodded. It was difficult to gauge what they were thinking. They were illiterate farmers, and none of them had ever been to Germany. Now they were suddenly being told that there was a German court that could reach a verdict on their case. It didn't sound like a realistic solution to them. It sounded more like a film in which Afghan farmers, in an unlikely twist of fate, sue the German government for damages.
"I don't know whether we'll succeed," Popal said, looking at his socks. "And it could also take some time. Perhaps a year or two. I don't know."
Half an hour later, Popal was sitting on the steps at the entrance of the Hotel Kunduz, lighting a cigarette. He was staying in a basic room at the hotel, furnished with little more than a bed, a toilet and a non-functioning television set. The next day, Popal planned to meet his remaining clients and convince them to support the lawsuit.
Does he even stand a chance of winning a case like this?
"The chances are good," Popal said. "I would say 60 percent."
At the Defense Ministry in Berlin, the burly man smiles. "We're not terribly worried about a lawsuit or a trial," he says.
The man says that he has had a legal opinion prepared. The conclusion, he says, in a nutshell, is that a lawsuit will not succeed. The surviving family members of the victims don't have a case against the Bundeswehr. The burly man shrugs his shoulders, as if to say: Sorry, but that's the situation.
The End of a Clean German War
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.
'All We Had to Do Was Shoot the Ball into the Goal'
"There was a golden opportunity at the time," says Andreas Schulz, one of the attorneys. "The German state, through Guttenberg, had ultimately admitted to its mistakes and thus its assumption of liability. The German government was under enormous pressure. For someone seeking damages, it was a penalty kick. All we had to do was shoot the ball into the goal."
Schulz is sitting in the garden of the posh Schlosshotel Grunewald in Berlin. It's a hot summer's day, and Schulz is wearing a light-colored summer hat and shorts. His black Porsche convertible is parked in the sun outside the hotel entrance. "Popal couldn't deal with my style. He felt inferior, like a small Afghan lawyer who was being talked down to. His German wasn't perfect, his law firm was small and funds were tight," says Schulz, smiling.
Schulz and Popal parted ways when Schulz said in a newspaper interview that he "liked" the figure of $500,000 per victim. Popal ended their collaboration via text message. 500,000 dollars -- that was no longer Popal's world, no longer his case.
Perhaps the best way to explain the dispute between the two men is that Popal took an idealistic and romantic view of the case, while Schulz favored the American approach. Popal envisioned compensation in the form of aid projects. Schulz wanted to do a job that that would be financially worthwhile for all parties involved.
After that, Popal searched for a partner who shared his convictions. He found that partner in Bernhard Docke, a Bremen attorney who had made a name for himself by representing Murat Kurnaz, a German resident who was detained in Guantanamo Bay.
"I was naïve. I plunged into this case without a strategy," Popal says today. It's summer, and night has come to Kunduz. The roar of a jet can be heard in the distance, and somewhere out in the darkness the Americans are hunting down the Taliban. Popal flicks away his cigarette and lights another one. It's still his case. And he insists that it's still an important case: Afghan farmers hiring an attorney to challenge the consequences of war. When has that ever happened before?
According to the United Nations, 2,412 civilians died in Afghanistan in 2009, most as a result of Taliban attacks. But that number also includes about 600 people killed during operations by foreign troops and the domestic security forces. The survivors are usually paid a few thousand dollars for their dead relative, with the amount depending on who dropped the bomb or fired the shots. The Americans often pay $2,000. The Germans have been known to pay up to $30,000. These are voluntary payments with no recognition of any legal obligation. This too is probably part of a war that is being waged in a largely lawless context.
Part of His Life
In the Kunduz case, the victims have finally been given a face. Their survivors are making demands. They are appealing to a government, in a manner of speaking, by taking legal action. They have attorneys who attend hearings. The Kunduz case is something of an attempt to apply the law to a war.
Popal set the whole thing in motion, but sometimes he asks himself whether it was worth it. The case has become a key part of his life now, and Kunduz is now Popal's mission. The country of his childhood must now be reconciled with his adopted country.
Popal became more deeply absorbed in the case as the months passed. At some point, he lost his sense of perspective and his doubts, which ultimately made him vulnerable.
When asked about the number of casualties, Popal refers to his list and insists that it's the only one that is accurate. But any such list, no matter who compiled it, can be little more than an attempt to reach an approximation of the truth under the conditions in Afghanistan. When Popal is asked how many Taliban fighters were among the victims of the air strike, he says that there were five -- as if this figure could in fact be ascertained. And when he is asked today to assess his chances in a trial, he says "80 percent."
"At first my motivations were humanitarian," he says. "And I still have them, of course. But now it's also about showing that I can win this case."
For the German Defense Ministry and its burly lead negotiator, the situation in January must have been a godsend. The Defense Ministry expected to have an easy job of it, given that it was up against a quarreling, disintegrating legal team headed by Popal, a man who was fighting for his reputation.
The negotiations continued until March. No one had experience with a compensation case of this magnitude. Popal and his new partner, Docke, proposed projects that could provide a livelihood for the survivors, most of them women and children. The costs of the projects, the locations and Afghan customs were discussed.
At the end of a meeting on March 19, the two sides agreed to characterize their interactions as "constructive talks" and scheduled another meeting. On March 30, Docke received a fax from the Defense Ministry informing him that the negotiations were being discontinued. At the same time, the Defense Ministry began feeding stories to selected journalists. Suddenly various media outlets were reporting that Docke and Popal had demanded a fee of €200,000 during the talks.
"I was completely surprised," says Docke. "There was absolutely no indication that the negotiations would be discontinued. And we never asked for a fee of €200,000."
'Unusual and Inappropriate'
At the Defense Ministry in Berlin, the burly man sadly shakes his head. Two hundred thousand euros, he says -- now that's an unusual and inappropriate demand. Then he pours coffee and takes a few cookies from a plate. "The situation with their clients was unclear," says the burly man, eating a cookie. "Suddenly 30 victims' families turned up and demanded direct compensation talks with the Bundeswehr. That was when we realized whose interests the attorneys were in fact promoting."
Docke says that he immediately informed the ministry that none of the clients had backed out. "I have to ask myself," he says, "who these victims' families were that suddenly turned up after half a year."
Running Out of Steam
Time passed. Summer came to Kunduz, and the war continued. In Germany, the case seemed to be running out of steam.
But hadn't the German government intended to provide quick assistance with as little red tape as possible?
"How can you help people quickly and without red tape if the victims' families hire attorneys and the attorneys set the pace?" the burly man asks, leaning back in his chair.
The case took its last, critical turn in July. The burly man was back to negotiating with the victims' attorneys. The lawyers' supposed demand for a €200,000 fee and the "unclear situation regarding the clients" -- in short, all the things that had prompted the Defense Ministry to suspend negotiations only three months earlier -- were suddenly irrelevant.
Popal and Docke, demoralized and on edge, were no longer directly involved in the negotiations. Instead, they were being represented by two other attorneys with experience in cases against the Bundeswehr, Remo Klinger and Reiner Geulen, as well as Wolfgang Kaleck, a human rights attorney and general secretary of the European Center for Constitutional and Human Rights. The men were now part of Popal's legal team.
The negotiations continued throughout July. Once again, there was talk of "constructive conversations" and projects, including the construction of a hospital in Kunduz. The teams met three times. Meanwhile, the Bundeswehr was busy creating a fait accompli in Afghanistan.
Bundeswehr employees prepared a list of 102 people entitled to compensation, and then they met and negotiated with the families of the victims. Each family was offered a monetary payment of about €4,000 or $5,000. Accounts were opened at the Kabul Bank in Kunduz, and many of the victims' families accepted the Bundeswehr's offer. They needed the money. After all the investigations, lists of casualties and unsuccessful negotiations of the last few months, they were ready to accept any compensation at all.
The Last Word?
The negotiations continued in Berlin, and a meeting was scheduled for Aug. 10. The attorneys were not unhappy with the way the talks were going. An agreement seemed within reach.
But on Aug. 5, the Defense Ministry informed the attorneys that, for "humanitarian reasons" and "without recognition of a legal obligation," it had come to an agreement with the victims' families. The newspapers, news agencies and television networks reported that the Kunduz case had finally been brought to a close.
It sounded like the last word.
If anyone in this case can be characterized as a winner, it could well be the burly man from the Defense Ministry. At the beginning of the year, he and the attorneys were still negotiating over aid projects worth up to €9 million. Now the Bundeswehr will be paying $5,000 -- not for each life that was lost, but to each family of a victim or multiple victims. In other words, all families will receive the same compensation, no matter how many of their members were killed in the Kunduz bombing. And the cost to the Bundeswehr? Half a million dollars.
Not a bad outcome for a lead negotiator.
Just a Fender Bender
In the past, Germany has paid $20,000 to the family of an Afghan woman who was shot at a checkpoint, and $33,000 for a dead Afghan boy. The price has apparently gone down since then. This is partly the result of pressure from Germany's NATO allies. Before, the Germans were seen as driving up prices in Afghanistan. The Kunduz bombing, Germany's war trauma, its big case, is now a $5,000 case. Little more than a wartime fender bender, if you will.
The Kunduz bombing and the compensation claims of the victims' families could end up in a German court soon. If that happens, German judges, thousands of kilometers removed from the war, could find themselves called upon to decide how much a life that was extinguished by a German colonel's order is worth. Karim Popal says that he intends to file a claim for damages.
Everything is prepared, says Popal.
Translated from the German by Christopher Sultan