Last month, the Grand Chamber of the European Court of Human Rights handed down its judgment in Jaloud v. the Netherlands (full text). The case arose out of the death of Azhar Sabah Jaloud who was shot and killed when the car in which he was a passenger was fired upon going through a checkpoint in Iraq in April 2004. The shots were fired on the car by Lieutenant A, a Dutch soldier, and may also have been fired by the ICDC (the Iraqi Civil Defence Corps). The applicant (the victim’s father) claimed that the Netherlands had failed to properly investigate the incident, and was in breach of its procedural obligation under Article 2 of the European Convention on Human Rights (ECHR) (right to life). The Dutch government challenged the admissibility of the application on the basis that the case did not fall within the “jurisdiction” of the Netherlands within the meaning of Article 1 of the ECHR. The Court dismissed the government’s objection on the question of jurisdiction, and found Netherlands in breach of the procedural obligation under Article 2.
This post focuses on the Court’s approach to extra-territorial jurisdiction, which adds to its growing jurisprudence on the application of Convention rights in the context of military operations overseas.
By way of background, from July 2003 until March 2005, Dutch troops participated in the Stabilization Force in Iraq (SFIR), under the mandate of UN Security Council Resolution 1483. The troops were stationed in the province of Al-Muthanna as part of Multinational Division South-East (MND-SE), which was under UK command. The participation of Dutch forces was governed by a Memorandum of Understanding between the United Kingdom and the Netherlands, which also included Rules of Engagement (both documents remain classified). There was also a unit of the Royal Military Constabulary, a branch of the armed forces, attached to the Netherlands forces in Iraq. The checkpoint in question was manned by members of the ICDC.
The government’s objections
The government argued that the shooting incident did not fall within its jurisdiction, and sought to distinguish Al-Skeini v. the United Kingdom (in which the Court found the UK to have jurisdiction in respect of deaths of civilians killed during security operations carried out by British soldiers in Basrah). The government argued:
- It was not an “occupying power” in terms of international humanitarian law (with only the US and UK so designated by UNSCR 1483);
- It had not assumed any of the public powers normally to be exercised by a sovereign government, and had at all times been under the operational control of a British officer, the commander of MND-SE;
- The vehicle checkpoint was under the authority of Iraqi security forces; and
- Dutch troops had not at any time exercised physical control over Jaloud, and the firing of shots was not in itself sufficient to establish jurisdiction in this sense.
The Court’s assessment
In Al-Skeini v. the United Kingdom, the Court stressed the primarily territorial nature of jurisdiction under the ECHR, but identified and articulated exceptions to that principle including (a) where state agents exercise authority and control extra-territorially and (b) when, as a consequence of lawful or unlawful military action, a state exercises effective control of an area outside national territory.
In the present case, the Court held that the concept of “occupying power” within the meaning of the Hague Regulations, “or lack of it, is not per se determinative” of the question of jurisdiction under the Convention. In particular, the Court cited the UN Security Council’s call in Resolution 1483 to “all concerned”—not merely the occupying powers—to comply fully with international law obligations.
The Court held that the sole act of the Netherlands having accepted operational control by the British commander of MND-SE did not automatically strip the Netherlands of jurisdiction. It noted that according to the Dutch foreign affairs and defense ministers’ letter to parliament, the Netherlands retained “full command” over its military personnel. Although the Court accepted that the Dutch forces took their day-to-day orders from a British commander, it stated that the Netherlands retained the ability to formulate essential policy, including through the drawing up of distinct rules of engagement.
The Court did not find it determinative that the checkpoint was “nominally manned” by Iraqi personnel; it noted that the ICDC forces were subordinate to, and supervised by, Coalition officers. Rather, “the Netherlands assumed responsibility for providing security in that area, to the exclusion of other participating States, and retained full command over its contingent there.”
On the basis of the above considerations, the Court concluded:
“151. … the Court cannot find that the Netherlands troops were placed “at the disposal” of any foreign power, whether it be Iraq or the United Kingdom or any other power, or that they were “under the exclusive direction or control” of any other State (compare, mutatis mutandis, Article 6 of the International Law Commission’s Articles on State Responsibility …; see also Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro) Judgment, I.C.J. Reports 2007 …)).
152. The Court now turns to the circumstances surrounding the death of Mr Azhar Sabah Jaloud. It notes that Mr Azhar Sabah Jaloud met his death when a vehicle in which he was a passenger was fired upon while passing through a checkpoint manned by personnel under the command and direct supervision of a Netherlands Royal Army officer.The checkpoint had been set up in the execution of SFIR’s mission, under United Nations Security Council Resolution 1483 … to restore conditions of stability and security conducive to the creation of an effective administration in the country. The Court is satisfied that [the Netherlands] exercised its “jurisdiction” within the limits of its SFIR mission and for the purpose of asserting authority and control over persons passing through the checkpoint. That being the case, the Court finds that the death of Mr Azhar Sabah Jaloud occurred within the “jurisdiction” of the Netherlands, as that expression is to be construed within the meaning of Article 1 of the Convention.”
Existing principles or new course?
The Court appeared to be satisfied that the Netherlands exercised its jurisdiction on the basis that Dutch troops asserted “authority and control over persons passing through the checkpoint.” On this basis, the ruling appears to fall within the (a) exception noted above, namely, state agent authority and control. This is unsurprising when it is recalled that one of the test cases in Al-Skeini involved a very similar case – of a man shot and killed whilst driving through a checkpoint (see details for the fourth applicant in the judgment). Furthermore, the immateriality of the UK’s role as occupying power has already been addressed by the Grand Chamber, in the recent judgment in Hassan v. the United Kingdom, which also clarified that basis for the findings of jurisdiction in Al-Skeini were state agent authority and not effective control of an area. See the JSB posts on Hassan, here and here. Thus, with Jaloud, the court does not chart new territory in the debate on extra-territorial application of Convention rights.