Jaloud v Netherlands: New Directions in Extra-Territorial Military Operations

Last week, the Grand Chamber of the European Court of Human Rights delivered its judgment in Jaloud v Netherlands. The case arose out of the fatal shooting of Azhar Sabah Jaloud by Dutch troops in the early hours of 21 April 2004 at a checkpoint in Iraq. The applicant claimed that the investigation into the incident was inadequate and therefore in breach of the Netherlands’ procedural obligations under Article 2 of the European Convention on Human Rights.

Jaloud is the latest in a growing line of Strasbourg cases addressing the application of the Convention to extra-territorial military operations. The Court’s jurisprudence on the subject is a source of endless fascination. Like any good thriller, its twists and turns leave the observer suspended in fearful anticipation on a never ending quest for legal certainty. Will the law stretch as far as the facts or is jurisdiction a threshold too far? Will the Court prevail against conceptual confusion? Which of its dicta is up for silent reversal? And what will be the next victim of normative conflict?

Jaloud does not disappoint. The extraterritorial plot thickens and certainty remains in suspense. In this post, I will limit myself to the jurisdictional aspects of the case. Two points merit attention: the Court’s reasons for finding that the jurisdiction of the Netherlands was not excluded and the new category of extra-territorial jurisdiction over ‘persons passing through a checkpoint’.

Full command: the end of Behrami?

The Netherlands denied that its jurisdiction was engaged by the incident for two reasons. First, it argued that public authority in Iraq lay entirely in the hands of the United Kingdom and the United States of America as occupying powers in accordance with Security Council Resolution 1483. In response, the Court observed that the legal status of occupying power, or the lack thereof, was not determinative of the question of jurisdiction (para 142). Rather, account had to be taken of the particular factual context. In this respect, the Court accepted that the Dutch contingent came under the operational control of a British officer, but held that this was insufficient to divest the Netherlands of its jurisdiction (para 143). This was so because the Government assumed responsibility for providing security in its area of operations to the exclusion of other participating States and retained full command over its contingent there (paras 143 and 149). The Court therefore rejected the idea that Netherlands troops were placed at the disposal of another State (para 151).

This reasoning is remarkable for several reasons. The Court asserted that the Netherlands assumed exclusive responsibility for security in its area of deployment despite the fact that the relevant documents cited in the judgment suggest that it operated in support of the occupying powers, not to their exclusion. Moreover, while the Court accepted that the Dutch contingent took its day-to-day orders from a British commander, it set this aside on the basis that the Netherlands retained the right to formulate policy in essential matters affecting its contingent, including through adjusting the multinational rules of engagement (ROE) (para 149). Why the right to adjust the multinational ROE should constitute proof of independent policy-making by the Netherlands which carries greater weight than the transfer of operational control over its contingent to a foreign commander is unclear, not least because the applicable instruments only authorized the adoption of more restrictive, but not more permissive, ROE at the contingent level (see para 100). The handling of these questions is less than impressive.

Most remarkable, however, is the central role the concept of ‘full command’ assumes in the Court’s reasoning. States contributing forces to multinational military operations routinely assign operational control over their troops to foreign commanders. However, they invariably retain ultimate military authority, known as full command, for themselves (see Fleck and Gill, eds, The Handbook of the International Law of Military Operations, p. 237). Otherwise their contingents would fall outside the national chain of command and, essentially, cease to function as national military units.

The Court’s recourse to the concept of full command represents a significant a departure from its earlier case-law. In Behrami, it proceeded on the basis that public powers in Kosovo were exercised by the international presences established pursuant to Security Council Resolution 1244 (para 70; see here for more detail). Similarly, in Jaloud the Netherlands argued that public authority in Iraq lay in the hands of the occupying powers. In both cases, the Court recognized that sending States did not transfer exclusive control over their national contingents to multinational commands, but retained certain powers of control for themselves (Behrami, para 138–139; Jaloud, para 146). In Behrami, this residual control did not prevent the attribution of the acts and omissions of national contingents to NATO and the UN (para 140). Nor did it establish a jurisdictional link between the applicants and the respondent States (para 71). By contrast, in Jaloud the Court boldly asserted that the Netherlands was ‘not divested of its “jurisdiction”, within the meaning of Article 1 of the Convention, solely by dint of having accepted the operational control of the commander of MND (SE), a United Kingdom officer’, given that it retained full command over its military personnel (para 143).

Jaloud therefore suggests that full command constitutes a sufficient link between the State and its armed forces operating under in a multinational context so as to preserve the national character of their activities. Put differently, the activities of national contingents do not fall outside the scope of Article 1 on the grounds that they act as part of a multinational force pursuant to foreign orders in pursuit of an international mandate. The existence of full command ensures that any acts carried out by national contingents which cross the threshold of jurisdiction constitute national acts for the purposes of Article 1 of the Convention. Behrami, essentially, has been cast aside.

The attraction of this approach is plain: it should considerably simplify establishing the existence of jurisdiction, since it predetermines that national contingents engage the jurisdiction of their sending States (see also here). Its downside, however, is that it is blind to the fact that national contingents may exercise powers which do not belong to their sending States, but derive from their international mandate. If the concept of jurisdiction is understood not as pure factual control or coercion, but to include a normative element of authority (to this effect, see Besson), then this approach is rightly criticized as overinclusive.

Jurisdiction over ‘persons passing through a checkpoint’

Second, the Netherlands argued that the claim was inadmissible because opening fire at a person was insufficient to bring him or her within the scope of Article 1 of the Convention. It is important to emphasize that the Court did not dismiss this point. It simply held that Jaloud fell within the jurisdiction of the Netherlands for a different reason, namely because he passed through a checkpoint set up for the purpose of asserting authority and control over persons passing through it. In doing so, the Court preserved the principle that Article 1 does not admit of a ‘cause and effect’ notion of jurisdiction (see Banković, para 75; Medvedyev, para 64). The use of a weapon still does not bring the target within the jurisdiction of the State concerned.

The idea that the operation of a vehicle checkpoint constitutes an assertion of authority and control is certainly intuitive, but it is not without difficulties. To better appreciate these, it is worth recalling Al-Skeini, especially since the authors of the Joint Concurring Opinion suggest that Jaloud builds logically on that case. As the Court made clear recently in Hassan (para. 75), the UK’s jurisdiction was engaged in Al-Skeini because it assumed authority for the maintenance of security in South East Iraq and the applicants’ relatives were killed in the course of security operations carried out by its troops pursuant to that assumption of authority. Accordingly, the Court declared that it was unnecessary to determine whether jurisdiction existed on the ground as a result of British forces exercising effective military control over South East Iraq.

Following in the footsteps of Al-Skeini, the Court could have declared the Netherlands to have assumed authority over its area of deployment so that security operations carried out by its troops pursuant to that assumption of authority engaged its jurisdiction, regardless of whether it exercised effective control on the ground. Indeed, it is noteworthy that the Court found that the Netherlands assumed ‘responsibility’ for providing security in its area of operations to the exclusion of other States (para 149). However, the judgment stops short of finding Article 1 engaged on this basis alone. Instead, it adds that the checkpoint was ‘manned by personnel under the command and direct supervision of a Netherlands Royal Army officer’ and set up in the execution of the mandate contained in Security Council Resolution 1483 (para 152). It is troubling that the Court failed to substantiate these points, given that in its submissions the Netherlands expressly denied that it exercised control over the Iraqi personnel manning the checkpoint (para 117).

In any event, the Court’s analysis suggests that Jaloud fell within the jurisdiction of the Netherlands not because of his presence in a geographical sector over which the Government assumed authority, as in Al-Skeini, but because he came within the sphere of authority and control established through the checkpoint. Two conclusions may be drawn from this. First, the Court applied the personal rather than the geographical model of extra-territorial jurisdiction. The checkpoint is merely the means through which the Netherlands was said to have asserted its authority and control over persons passing through it. It is therefore best conceptualized as a sphere of influence existing in space, rather than as a precisely demarcated geographical location. Second, because of this, the boundaries of this category of extra-territorial jurisdiction are fluid and uncertain. Checkpoints do not have to be fixed or permanent. They can be mobile and be set up at short notice. Consequently, what exactly distinguishes them from a foot patrol: is a patrol not a moving checkpoint? Checkpoints may be set up not only on land, but also at sea and in the air. Could one aircraft intercepting another one not conceivably be said to enforce a checkpoint? Perhaps the Court will find a way to address these questions in a principled manner to avoid the drift towards ‘cause and effect’ jurisdiction. However, for now, Jaloud seems to have increased the chances of the Convention’s application to extra-territorial military operations.

Ye old hat: jurisdiction and attribution

Having established that the incident fell within the jurisdiction of the Netherlands, the Court thought it necessary to reiterate that ‘the test for establishing the existence of “jurisdiction” under Article 1 of the Convention has never been equated with the test for establishing a State’s responsibility for an internationally wrongful act under general international law’ (para 154). This is a welcome reminder, but the Court cannot escape blame for blurring the dividing lines between jurisdiction and responsibility. Consider this concluding statement on jurisdiction:

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…).

One wonders how the rules of State responsibility apply, mutatis mutandis, to establishing the existence of jurisdiction. Be that as it may, by introducing the concept of full command into the debate, Jaloud may have increased the prospects of disentangling the two questions. If full command implies that the armed forces engage the jurisdiction of their sending State by default, then this should purge attribution questions from the jurisdictional analysis. However, as noted earlier, this might extend the Convention too far. What the Court makes of this prospect remains to be seen.