On November 20, 2014, the European Court of Human Rights issued its judgment in the case of Jaloud v. the Netherlands, concerning the shooting death of an Iraqi national, Azhar Sabah Jaloud, at a military checkpoint overseen by Dutch troops serving as part of the Stabilisation Force in Iraq (SFIR) in April 2004. [ECtHR] The case is significant because it expands on the Court’s previous jurisprudence concerning the application of extraterritorial jurisdiction in armed conflict situations.
In his application to the Court, the applicant, Jaloud’s father, alleged that the Netherlands had violated the procedural aspects of Article 2 (right to life) of the European Convention on Human Rights by failing to carry out an adequate investigation into the circumstances of his son’s death. [ECtHR] Holding that a State has jurisdiction over the acts of its military service personnel operating abroad under the State’s “exclusive direction or control,” the Court determined that the Netherlands’ exercise of “authority and control over persons passing through the checkpoint” indicated that it had jurisdiction over the shooting death of Jaloud within the meaning of Article 1 (obligation to respect human rights) of the European Convention. ECtHR, Jaloud v. the Netherlands [GC], no. 47708/08, Judgment of 20 November 2014, paras. 151-53.
As such, the Netherlands was under an obligation to conduct an effective investigation into Jaloud’s death. The Court found the Dutch investigation to be inadequate because it failed to preserve certain evidence, to ensure a suitable autopsy, to prevent potential suspects from colluding with key witnesses, and to provide critical reports to the reviewing court. Thus, the Court found that the Netherlands breached the procedural obligations of Article 2 of the European Convention. Id. at paras. 227-28.
Facts of the Case
Shortly after 2:00 a.m. on April 21, 2004, an unidentified car opened fire on a military checkpoint guarded by members of the Iraqi Civil Defence Corps (ICDC). Although the ICDC personnel returned fire, the driver of the car managed to drive away. Id. at para. 10. The ICDC commander called a patrol of six Dutch soldiers, led by Lieutenant A., to the scene.
Soon after the arrival of Lieutenant A. and the other Dutch soldiers, another car approached and crashed into the checkpoint. When it continued to advance, Lieutenant A. fired at it; ICDC personnel may also have opened fire. Id. at paras. 11-12. Jaloud, who had been riding in the front seat of the car, was shot in several places, including his chest. He died within an hour of the incident. Id. at para. 13.
The same night, Dutch military police began an investigation into the incident. Jaloud’s body, the car, and the rifles of Lieutenant A. and an ICDC officer were seized. Id. at paras. 17-21. A subsequent autopsy conducted by an Iraqi physician, in the absence of Dutch officials, revealed several bullet fragments in Jaloud’s body. Id. at paras. 15, 169. Neither the shooter nor the weapon used in the shooting,were ever identified, however, and the Dutch authorities subsequently “lost all trace” of the bullet fragments. Id. at paras. 16, 218. In June 2004, the investigation was closed. Id. at para. 40.
Because it was unclear whether Jaloud had been killed by a Dutch or an Iraqi bullet, the Dutch public prosecutor declined to prosecute Lieutenant A. or any other Dutch agents. The public prosecutor’s decision not to prosecute was also based on the reasoning that, even if Lieutenant A. had fired the shot that killed Jaloud, he was entitled to claim self-defense. Id.
The applicant subsequently lodged a request with the Military Chamber of the Arnhem Court of Appeal seeking an order for the prosecution of Lieutenant A. and additional investigative measures. The appellate court denied these requests. Id. at paras. 43, 48. The applicant then filed his complaint with the Court on October 6, 2008. A hearing on the case was held on February 19, 2009.
Extraterritorial Application of the ECHR
As a threshold matter, the Court addressed whether the shooting incident came within the Netherlands’ “jurisdiction,” within the meaning of Article 1 of the ECHR. Id. at para. 109. Under the European Convention, jurisdiction is “primarily territorial,” except in certain circumstances. Id. at para. 139. Whether a State has extraterritorial jurisdiction depends on the “particular facts” of each case. Id. at para. 132. In general, a State exercises extraterritorial jurisdiction:
- over acts of its agents which “produce effects outside its own territory”;
- where a State “exercises all or some public powers” in a foreign State;
- where an individual is brought under the control of State agents outside of the State’s territory through the use of force; and
- where it “exercises effective control” outside of its national territory as a consequence of military action.
Id. at para. 139 (quoting ECtHR, Al-Skeini and Others v. United Kingdom [GC], no. 55721/07, ECHR 2011, Judgment of 7 July 2011, paras. 130–39).
Arguments of the Netherlands and the United Kingdom
The Netherlands argued that none of these circumstances applied. Id. at paras. 112–20. The United Kingdom, which had argued unsuccessfully that it did not have extraterritorial jurisdiction over an Iraqi national detained by British forces in Iraq in the case of Hassan v. United Kingdom earlier this year, intervened in support of the Dutch position. The U.K. argued that the notion of jurisdiction is “essentially territorial” and that it should not “evolve” or “incrementally develop” in the same way as the substantive rights of the European Convention do. Id. at para. 121. In essence, the U.K. argued that the Court would have to expand its current understanding of extraterritorial jurisdiction in order to find the Netherlands responsible for ensuring Convention rights to Jalhoud in Iraq. See ECtHR, Hassan v. United Kingdom [GC], no. 29750/09, Judgment of 16 September 2014.
The U.K. also advanced the policy argument that if the Netherlands, which was not an “occupying power,” was found to have jurisdiction, there would be a risk that States parties to the European Convention would no longer respond to calls from the United Nations (UN) Security Council to contribute troops to UN-mandated security efforts— like the SFRI in Iraq—and that this would undermine the UN’s ability to promote international peace and security. Jaloud v. The Netherlands [GC], Judgment of 20 November 2014 at paras. 125–26.
The Court’s Decision on Jurisdiction
The Court observed that a critical issue in establishing jurisdiction was whether the Netherlands exercised effective control over the checkpoint. Finding that the State retained “full command” over Dutch forces in Iraq, the Court determined that its forces were not “‘at the disposal’ of” or “under the exclusive direction or control of” any other State. Id. at paras. 143-149, 151. Jaloud was a passenger in a vehicle shot at when passing a military checkpoint manned by troops under the “command and direct supervision of a Netherlands Royal Army officer.” Thus, the Dutch government exercised jurisdiction “for the purpose of asserting authority and control over persons passing through the checkpoint.” As a result, the Court determined that Jaloud’s death occurred within the jurisdiction of the Netherlands as defined in Article 1 of the European Convention. Id. at para. 152.
Breach of the Article 2 Duty to Investigate Jaloud’s Death
Emphasizing that Article 2’s prohibition on arbitrary killings would be “ineffective in practice” without a procedure for reviewing the lawfulness of State authorities’ use of force, the Court observed that there must be “some form of effective official investigation” when State agents have used deadly force against individuals. Id. at para. 186 (quoting Al-Skeini and Others v. United Kingdom [GC], Judgment of 7 July 2011, paras. 163–67). Such investigations are required even in “difficult security conditions,” including in the context of armed conflict. Id.
To be effective, the investigation must:
- be capable of determining whether the use of force was justified and identifying those responsible;
- be independent from those implicated in the events; and
- be reasonably prompt.
Here, the Court determined that the Netherlands failed to conduct an effective investigation pursuant to Article 2 of the European Convention because key documents were not made available to judicial authorities or to the applicant, no precautions were taken to keep Lieutenant A. from colluding with other witnesses before his questioning, the autopsy was inadequate, and important evidence had been misplaced. Id. at paras. 227-28.
In a partially concurring opinion, Judges Josep Casadevall, Isabelle Berro-Lefevre, Ján Šikuta, Päivi Hirvelä, Luis López Guerra, András Sajó and Johannes Silvis disagreed with portions of the majority’s reasoning as regards the finding of a procedural violation of Article 2. These judges agreed that the appellate court in the Netherlands should have received all of the witness statements collected by the military police. They believed, however, that it was inappropriate for the Court to “scrutinize the investigations in Iraq in such a painstaking way that eyebrows may be raised about the role and competence of our court.” ECtHR, Jaloud v. the Netherlands [GC], Joint Concurring Opinion of Judges Casadevall, Berro-Lefevre, Šikuta, Hirvelä, López Guerra, Sajó and Silvas, 20 November 2014, paras. 1, 6.
Judges Dean Spielmann and Guido Raimondi also issued a joint concurring opinion, as did Judge Iulia Antoanella Motoc. See ECtHR, Jaloud v. the Netherlands [GC], no. 47708/08, Joint Concurring Opinion of Duge Spielmann, Joined by Judge Raimondi, 20 November 2014; ECtHR, Jaloud v. the Netherlands [GC], no. 47708/08, Concurring Opinion of Judge Motoc, 20 November 2014.
Significance of Jaloud v. the Netherlands and Hassan v. United Kingdom
The Jaloud judgment extends the line of reasoning concerning extraterritorial jurisdiction that the Court laid out in the case of Hassan v. United Kingdom. The Hassan case concerned an application filed on behalf of Tarek Hassan, whose body was found in September 2003 approximately 700 kilometers from Camp Bucca, where he had been detained by British armed forces as a suspected combatant from April to May 2003. Allegedly, Hassan’s body was covered in bruises, he had sustained eight bullet wounds to the chest from an AK-47, and his hands were tied with plastic wire. [ECtHR Press Release] The Court determined that, where State agents acting extraterritorially take an individual into custody, that custody provides a basis for jurisdiction within the meaning of Article 1 of the ECHR, even during an international armed conflict. See Hassan v. United Kingdom, Judgment of 20 November 2014, paras. 76-77.
The Jaloud decision further established that a State may have Article 1 jurisdiction over the extraterritorial acts of its military personnel where those personnel are operating under the exclusive command of the State, even if the State is not an occupying power. Jaloud v. the Netherlands, Judgment of 20 November 2014, paras. 143-52.
In contrast to the Jaloud case, in Hassan, the Court found that the U.K. had no duty to investigate the alleged torture and wrongful death of Hassan. Although the Court emphasized that Article 2 of the Convention imposes an obligation on the State to undertake an effective investigation when an individual is killed at the hands of the State or its agents, it explained that the obligation as not triggered where the allegations of torture and wrongful death were “manifestly ill-founded.” Hassan v. United Kingdom, Judgment of 16 September 2014, paras. 62, 64. The Court noted that there was no evidence that the U.K. was “responsible in any way, directly or indirectly, for Tarek Hassan’s death, which occurred some four months after he was released from Camp Bucca, in a distant part of the country not controlled by United Kingdom forces.” Since there was no evidence that agents of the U.K. were involved in Hassan’s death, or that his death occurred in the territory controlled by the U.K., there was no obligation under Article 2 of the European Convention to investigate the death.
To learn more about the facts and significance of the Hassan decision, see IJRC’s September 17 news post.