Following up on Aurel’s post on the Jaloud v. Netherlands case, I want to add a few brief thoughts regarding the bottom line of the judgment and what it means for the overseas military operations of European states.
First, Jaloud confirms the general trend in the European Court’s case law towards a more expansive approach to the extraterritorial application of the ECHR. Whether you think an expansive approach is a good idea or not, the trend is there, since the normative pull of universality is hard to resist, and as the Court becomes increasingly more familiar with applying the Convention to extraordinary situations. I personally feel that the judgment is correct in its basic approach to extraterritoriality, even if there is some conceptual confusion between various questions of jurisdiction and attribution, on which I will write separately. But the basic message to states is this: trying to exploit the many contradictions in the Court’s case law on extraterritoriality to deny the applicability of the Convention in this case or that will in most circumstances end in defeat. Rather than fighting a losing battle, states should focus their energies on arguments on the merits on which they are more likely to win.
Second, this means that when operating in theatre armed forces and their legal advisors should generally work on the assumption that the Convention applies (even if in a somewhat attenuated form), rather than on the assumption that it does not apply.
Third, when it comes to the merits of Jaloud, which like Al-Skeini dealt with the procedural obligation to investigate under Article 2 rather than with the lawfulness of the killing itself, the Court was unanimous in finding a violation. But the apparent unanimity actually hides a split within the Court with regard to the flexibility that states should be accorded in extraordinary situations such occupation and armed conflict, and the strictness of the Court’s own review of state action. Note that the judgment as such reflects the view of the majority of 10 judges of the Grand Chamber, while the minority of 7 judges (Casadevall et al) wrote a joint concurring opinion – had but two of the majority judges changed their minds, the majority would have been the minority. The substantive divide between the majority and the minority was not great, but it was still significant. The outcome of future cases will depend on the composition of the bench, and it would be unwise to think that Jaloud settles the questions of flexibility and strictness of review once and for all.
Fourth, in that regard, both the majority and the minority agreed that the Court must give some flexibility to states in extraordinary situations. Thus, in para. 226 the judgment states that:
The Court is prepared to make reasonable allowances for the relatively difficult conditions under which the Netherlands military and investigators had to work. In particular, it must be recognised that they were engaged in a foreign country which had yet to be rebuilt in the aftermath of hostilities, whose language and culture were alien to them, and whose population – witness the first shooting incident on 21 April 2004 (see paragraph 10 above) – clearly included armed hostile elements.
This point is further stressed in the joint concurring opinion, para. 4:
It is clear, as the Court has stated on several occasions, that where the death to be investigated under Article 2 of the Convention occurs in circumstances of armed conflict or in an otherwise unstable region, obstacles may be placed in the way of investigators and concrete constraints may compel the use of less effective measures of investigation. The key question then is whether the investigation into the shooting was conducted in a sufficiently effective and diligent manner, in the sense that it would have been capable of leading to the identification and punishment of those responsible. This is not an obligation of results, but of means.
Where the majority and the minority part ways is now strictly they evaluate the conduct of the Dutch authorities. The Court finds many things to fault (para. 227):
Even so, 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 taken 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.
The minority, on the other hand, would have found a violation only on the first point made by the Court (the inadequacies in the official record and documents as presented to Dutch judicial authorities and the applicant), but would have found no violation with regard to the hypothetical possibility of collusion by the Lieutenant and the inadequate forensics (paras. 5-8 of the joint concurring opinion).
In sum, the real divide between the majority and the minority was not on basic points of principle, but on how strict they should be in evaluating the factual record in the circumstances of this particular case. States should therefore not see Jaloud as a total loss: the judges of the Court do not seem to be on a mission of imposing wholly unreasonable or impracticable demands that states could never comply with in theatre, and are willing to be persuaded to accord states more flexibility when such flexibility is warranted (some, obviously, more than others). It is therefore precisely on the merits that states should invest the most effort in persuading the Court.