This guest post was written by Cedric De Koker, Phd Researcher, IRCP, Ghent University.

With its judgment in the case of Jaloud v. the Netherlands, the Grand Chamber of the European Court of Human Rights (ECtHR) has added another chapter to its growing body of case law relating to the extra-territorial application of the European Convention on Human Rights (ECHR) in the context of military operations abroad. The case is interesting for two reasons: first, the Netherlands (and the United Kingdom as an intervening third party) resorted to the often used, but rarely successful strategy of disputing the extra-territorial applicability of the Convention (and thus the admissibility of the claims presented by the applicant). Therefore, the Court had to interpret Article 1 ECHR once again – arguably the most difficult provision of the Convention to apply – and pronounce on whether the events under review fell ‘within the jurisdiction’ of the Netherlands. Second, asked about the scope of the investigative duty under Article 2 ECHR, the Court had to determine whether states have some flexibility in fulfilling their human rights obligations when operating in extraordinary and difficult conditions, such as hostile environments resulting out of armed conflict or occupation, as was the case here. Both issues will be discussed below.

Facts and complaints

On April 21st, 2004, a car approached a vehicle checkpoint, located near a town in south-eastern Iraq and manned by armed guards of the Iraqi Civil Defence Corps (ICDC), at speed. A patrol of six Dutch soldiers, which were present at the time to investigate an earlier shooting incident, ordered the car to stop. Upon refusal to comply, their leading officer, lieutenant A., opened fire. The applicant’s son, who sat next to the driver, was hit multiple times and ultimately succumbed to his wounds. As is customary after the deadly use of force by Dutch soldiers, a unit of the Royal Military Constabulary (Koninklijke marechaussee) was send out to investigate the incident and determine whether lieutenant A. had committed a professional fault necessitating prosecution. Both Dutch and ICDC personnel were interviewed, the car was seized and further evidence was gathered but in the end, the public prosecutor decided on the basis of the report of the investigators that the use of force was justified and no further legal action had to take place. Before both the domestic courts and the ECtHR, the applicant alleged, relying on Article 2 ECHR on the right to life, that ‘the respondent State had failed to meet its obligations to properly investigate the death of his son with a view to bringing the person responsible to justice’ (par. 157).

Jurisdiction over ‘persons passing through a checkpoint’

Before examining the merits of the case, the Court had to address the preliminary objection of the Netherlands (and the United Kingdom) that the ECHR did not apply as the events complained of did not fall within its jurisdiction, a necessary condition under Article 1 for the Convention to apply extraterritorially. The Court therefore had to revisit its earlier and somewhat controversial jurisprudence on the topic. In this regard it can be noted that in the past, the Court has relied on mainly two grounds to establish extra-territorial jurisdiction, namely spatial jurisdiction and personal jurisdiction. In the former case, jurisdiction arises as a result of States exercising ‘effective control’ over foreign territory (e.g. as a result of occupation); in the latter jurisdiction arises as a result of the exercise of ‘authority and control’ over an individual by State agents acting abroad (e.g. detention).

At first sight, the events under review in Jaloud v. Netherlands do not seem to fall neatly within one of these two categories. For starters, the Dutch troops were, as envisioned by Security Council Resolution 1483, present in Iraq in order to assist the United Kingdom in creating conditions of stability and security in Iraq and as such, had been placed under the operational command of – and thus had to take its day-to-day orders from – an UK officer. Therefore, it seems more likely that the ‘effective control’ over Iraqi territory, if it was found to exist, would rest with the UK as opposed to with the Netherlands. Second, the Court has consistently held that the mere fact of being the victim of a (lethal) attack – be it by a missile fired from a bomber aircraft (see Bankovic v. Belgium) or by shots fired by a servicemen as was the case here – is in itself not sufficient for personal jurisdiction to arise. Although somewhat illogical, it has long been established that a state agent does not necessarily have ‘authority and control’ over the individual in his crosshairs. Both these reasons would thus seem to preclude the extraterritorial application of the Convention to the actions of Netherlands and it is no surprise that the Dutch and UK government had advocated a similar point of view.

Yet, the Grand Chamber of the Court wasn’t overly convinced and in the end, the judges unanimously established jurisdiction with respect to the Netherlands. A two-pronged approach was used to come to this conclusion. First, the Court discarded the argument that the events complained of did not fall within the jurisdiction of the Netherlands because the authority of the operation laid elsewhere, i.e. with the UK. Even though the government of the Netherlands had relinquished operational command to the UK, the Court concluded on the basis of communications between the Dutch Minister of Defense and the Parliament that the Dutch contingent had nonetheless assumed responsibility for providing security in its area of operations to the exclusion of other participating States and retained ‘full command’ or ultimate military authority (i.e. the power to determine the overall policy of the force and punish their soldiers for misconduct). For this reason alone, jurisdiction for the Netherlands could not prima facie be excluded. In the words of the Court:

The fact of executing a decision or an order given by an authority of a foreign State is not in itself sufficient to relieve a Contracting State of the obligations which it has taken upon itself under the Convention. The respondent party is therefore not divested of its ‘jurisdiction’, within the meaning of the Article 1 of the Convention, solely by dint of having accepted the operational control of (…) a United Kingdom officer (par. 146.).

Second, the Court examined the above-mentioned grounds of extra-territoriality and determined whether one applied to the facts of the case. Here, it found that the applicant’s son came within the personal jurisdiction of the Netherlands, not because the use of a weapon brought the victim under the authority of control of its State agents, but because he passed through a checkpoint specifically set up for the purpose of asserting such authority and control. This is clearly a new variant of personal jurisdiction which the Court believes to exist alongside the well-known examples of arrest and detention. This form is without a doubt more permissive than the others which could lead to a wider application of the ECHR in the context of extra-territorial military operations.

The take-home message with regard to jurisdiction is therefore the following: whereas in the earlier cases related to the extra-territorial application of the Convention, the Court was rather reluctant to apply the Convention to military operations abroad, it is now slowly but surely moving towards a more expansive approach. The ruling in the case of Jaloud v. Netherlands is merely the latest expression of this approach. It will be interesting to see how far the Court will go in its reasoning and how it will handle other, somewhat similar situations, such as a foot patrol, where an individual is not physically within the hands of State agents but surely within their sphere of influence. In any case, military and legal advisors of States would do well to take this expansive approach into account when planning for military operations and seriously consider the option that the ECHR will apply.

The procedural component of Article 2 ECHR: the duty to investigate

With regard to the merits of the case, the applicant alleged that the Netherlands had violated the procedural component of the right to life under Article 2 ECHR. Notice that the applicant did not address the instantaneous act of killing in his complaint, but rather argued that the investigation into the death of his son fell short of what was required under Article 2 and as such, violated the Convention. His main reproach was that the investigation was not conducted indepently and in an effective manner (par.159-171).

With regard to the question of independence, the Court readily and unanimously dismissed the complaint of the applicant, stating that it saw no reason that might lead it to find the independence of the work of the Royal Military Constabulary to be affected to the point of impairing the quality of the investigation (par. 187-195). The judges, however, struggled somewhat with the issue of the effectiveness of the investigation. After all, since the Court had previously accepted that in extraordinary situation concrete constraints may compel the use of less effective measures of investigation, it now had to answer the deliquate question of whether the Netherlands had flexibility in fulfilling their human rights obligations under Article 2 ECHR. Perhaps more importantly, it also had to decide to what extent it was prepared to allow for a lower standerd of investigation. What does the Court consider to be reasonable allowances and where does it draw the line? After a careful consideration of the different aspects of the investigation performed by the Royal Military Constabulary, all the judges ultimately agreed that given the hostile circumstances in Iraq the Netherlands had some flexibility, but even so, failed to comply with the (attenuated) procedural obligations flowing from Article 2 ECHR. The judgment of the Court reads as follows:

The Court must conclude that the investigation into the circumstances surrounding Mr. Azhar Sabah Jaloud’s death failed for the following reasons, to meet the standards required by Article 2 of the Convention: firstly, documents containing important information were not made available to the judicial authorities and the applicant (the official record of statements taken from the ICDC personnel and the list, compiled by Lieutenant A., recording which ICDC members had fired their weapons and the number of rounds fired by each); secondly, in that no precautions were taken to prevent Lieutenant A. from colluding, before he was questioned, with other witnesses to the events, thirdly, in that no attempt was made to carry out the autopsy under conditions befitting an investigation into the possible criminal responsibility of an agent of the State, and in that the resulting report was inadequate; and fourthly, in that important material evidence – the bullet fragments from the body – was mislaid in unknown circumstances. It cannot be found that these failings were inevitable, even in the particularly difficult conditions prevailing in Iraq at the relevant time. (para 227)

Yet, It should be mentioned that the consensus amongst the judges in finding a violation of the Convention disguised an interesting rift within the Court. If one reads the different concurring opinions, it becomes clear that some judges, while agreeing with the outcome of the case, would like to distance themselves from some of the conclusions reached by the majority:

the Court has rightfully underlined that in a context such as the incident under scrutiny there may be obstacles to performing what may seem the most effective manner of investigation. However, this point of departure does not sit easily with all aspects of the subsequent painstaking analysis undertaken by the Court. (joint concurring opinion, par. 8)

The statement above clearly indicates that the minority found the majority to be too strict in its review of the conduct of the Dutch investigators and argued that given the specific circumstances of the case the Dutch government should have had more flexibility in complying with procedural component of the right to life. They would have only found a violation of the Convention with regard to the failure to supply several documents containing important information. Again, it will be interesting what the future will bring. The concurring opinions have demonstrated that several judges of the ECtHR are not entirely averse to the argument of States that requiring them to apply the full spectrum of Convention rights, in extraordinary situations, would place them under unreasonable and contraproductive burdens. This will in the future hopefully lead the attention away from the (sometimes pointless) discussions about extra-territorial jurisdiction towards the more interesting debates about the exact flexibility States enjoy in applying the Convention in war time situations.