Refining Al-Skeini v UK: The ECtHR’s Grand Chamber hearing in Jaloud v Netherlands

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The Grand Chamber at the ECtHR recently heard the case of Jaloud v the Netherlands. The case raises interesting issues concerning both extra-territorial jurisdiction and the obligations States owe to foreign nationals when deployed in foreign military operations. The facts are reasonably straightforward. The applicant’s son drove his car through a checkpoint without stopping in Iraq in 2004. A Dutch lieutenant at the checkpoint opened fire, hitting the applicant’s son who later died of his wounds. No weapons were found within the car. The Dutch forces there investigated the use of force and concluded that the use of force had been justified.


To begin with the jurisdictional issues, any hope that the question of extra-territorial jurisdiction had been settled in Al-Skeini v UK was dashed when both the Dutch and the UK, who acted as third party interveners, presented arguments that the applicant’s son was not within Dutch jurisdiction for the purposes of Article 1 ECHR when he was killed.

In principle there are 2 main forms of extra-territorial jurisdiction: spatial jurisdiction, which arises when the State exercises effective control over some foreign territory and personal jurisdiction, which arises where the State exercises authority and control over an individual. In Al-Skeini v UK, the ECtHR held that the UK was obliged to provide Convention-compliant investigations into the deaths of Iraqi civilians which occurred in the context of UK military operations while it occupied Iraq. The ECtHR applied a jurisdiction model somewhere between spatial jurisdiction and personal jurisdiction by holding that jurisdiction arises when a contracting State ‘exercises all or some of the public powers normally to be exercised [by the government of the State]’, (Al-Skeini at [135]) and then exercises authority and control over a person. In these circumstances instantaneous acts of UK soldiers, such as shootings, automatically created a jurisdictional link to the State:

 the United Kingdom […] assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government […] the United Kingdom assumed authority and responsibility for the maintenance of security in South-East Iraq. In these exceptional circumstances, the Court considers that the United Kingdom, through its soldiers engaged in security operations in Basrah during the period in question, exercised authority and control over individuals killed in the course of such security operations, so as to establish a jurisdictional link between the deceased and the United Kingdom’ – (Al-Skeini at [149])

 The key difference between this model and standard personal jurisdiction is that where the State is exercising some public powers, the ECtHR treats the power to kill and the instantaneous act of killing as ‘authority and control’ over the individual (discussion of this here and here). Historically, the ECtHR had ruled that instantaneous acts, such as firing a missile from a plane, did not give rise to authority and control over the airstrike victims (see Bankovic and Ors v Italy and Ors).

In the case last week, the States stressed that extra-territorial jurisdiction must continue to be ‘exceptional’ and confined to extremely limited circumstances and not to all foreign military operations. The UK argued that the State was only held to be exercising jurisdiction in Al-Skeini because of the unique circumstances – it had full authority and responsibility for the exercise of certain public powers, specifically maintaining security, and the deaths of the applicants’ relatives in Al-Skeini occurred in course of the UK exercising those powers. Outside of those circumstances, jurisdiction did not exist and the situation of the Dutch forces could be distinguished on many grounds. They had fewer troops deployed and they were under the operational command of the occupying powers. They had a much more limited mandate and role than the UK, with no powers of arrest or detention. The Netherlands was not an occupying power and had no role in governing Iraq. In essence, both States sought to deny that the Netherlands was exercising public powers in the same way as the UK in Al-Skeini and this jurisdiction did not arise.

This is undoubtedly a myopic view of the situation. The Netherlands was clearly exercising a public power in Iraq by manning and supervising the checkpoints and training the Iraqi soldiers. Establishing checkpoints was a relevant factor in determining whether a State exercised spatial jurisdiction (Issa v Turkey at [75]). Supervising soldiers and manning checkpoints were, to use the terminology of Al-Skeini, ‘some of the public powers normally […] exercised by that Government’. The Netherlands also investigated the event, interviewing officers and conducting crime-scene analysis, which again would normally be carried out by a State’s government. Further, the State’s de jure mandate is of less relevance than de facto situation on the ground, which the ECtHR needs to look at in its analysis. The case will likely hinge on how broadly the ECtHR defines the idea of ‘public powers’.

The States also argued that standard personal jurisdiction did not arise in this case and that such jurisdiction only arose when the State was detaining or capturing people and not when they have simply shot them. The ghost of Bankovic is clearly still haunting the court. The perverse outcome of Bankovic’s reasoning wherein a State is almost incentivised to kill to avoid having to guarantee human rights has come to the fore again. This issue has led to some serious inconsistencies in the case law in the past (there’s good analysis of this in Lawson’s chapter in margins of conflict). Comparing cases like Bankovic with Pad v Turkey (jurisdiction arose when a Turkish helicopter fired weapons near the border which killed people in Iran) and Andreou v Turkey (jurisdiction arose when a Turkish soldier fired from the TRNC in Cyprus into the Southern area injuring a civilian) reveals the inconsistencies. The ECtHR may avoid addressing this issue by focusing instead on the public powers point. Pulling back from Al-Skeini would cast the already convoluted jurisprudence on jurisdiction into further chaos, so hopefully the ECtHR will stick with it, refining rather than abandoning Al-Skeini in its judgment.


In Al-Skeini, the ECtHR held that any extra-territorial duty to investigate in Article 2 would have to be ‘realistic’ (Al-Skeini at [168]). This case questions whether the ECtHR is prepared to accept a lower standard of investigation in extra-territorial circumstances and what compromises the ECtHR is actually prepared to make for extra-territorial investigations? The procedural obligations in Article 2 are extremely difficult to satisfy in the context of active foreign military operations. With limited force number securing practical, institutional and hierarchical independence becomes difficult, analysing a crime scene in the midst of hostile forces may be impossible and ensuring a prompt investigation when multiple jurisdictions and language barriers are involved can also cause problems. In fairness the Dutch made a reasonable fist of the investigation in the circumstances. They scene was sealed, investigators arrived promptly, interviewed relevant personnel and gathered evidence. The issue of mandates raised in the arguments is perhaps the most interesting dimension of the merits.

The Netherlands argued they had a limited mandate in Iraq, which limited their investigation capability. They could only investigate Netherlands troops and could not seize goods or detain people for questioning. However, investigators were able to remove both the victim’s body and the car to their base, which casts doubt on this claim. Nonetheless, limitations to the scope of a State’s mandate will clearly pose a significant problem for future extra-territorial investigations. States may even deliberately seek to curtail their mandates for extra-territorial military operations in order to avoid having to uphold procedural obligations in the ECHR. The potential scope of these obligations could be colossal. A State may be obliged to provide a Convention-compliant investigation into every single death which occurs during their foreign military operations. Where a State is exercising spatial jurisdiction, the obligation becomes even more onerous and States may have to investigate deaths perpetrated by 3rd parties also. If the ECtHR is going to develop these procedural obligations in the extra-territorial context, they will need to mitigate their effects. One solution would be to only oblige the State to investigate where there is a suspicion of a violation of IHL. Although given the ECtHR’s broader reluctance to expressly rely on IHL in its judgments this may prove fanciful. The ECtHR will need to tread carefully in its judgment and develop creative solutions to avoid placing impossible investigative burdens on the State.

Both the ECtHR and States need to move beyond the debate about whether States have extra-territorial human rights obligations and the questions over jurisdiction toward determining what human rights obligations we can realistically expect States to uphold extra-territorially. Splitting the hairs of jurisdiction may prove a fruitful strategy for States in the short term, but they are beginning to look more and more like King Canute and the rising tide. The issue of extra-territorial jurisdiction during foreign military operations is not going away and the Convention’s rules, forged in fully functioning European States, are at best ill-suited to apply in the context of these extra-territorial military operations. Cases like Jaloud may be just the tip of the iceberg.

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Heiko Recktenwald says

March 7, 2014

The Netherlands were not an occupying power but they got their power by somebody and they cannot have less obligations than this other power.

Martin Holterman says

March 8, 2014

Sure they can have fewer obligations, just not more. It's the flipside of nemo transferre potest quod non ipse habet. When you borrow my house you "borrow" my obligation not to throw loud parties, but not my obligation to pay the real estate taxes.

More generally, I have to say all of these extra-territorial military cases, both from Iraq and, in the Dutch case, Srebrenica, are getting ever more tenuous. I fully agree that human rights obligations have to follow the flag, but the Dutch flag didn't fly over Srebrenica or Iraq in any real sense.

Stuart Wallace says

March 9, 2014

The Dutch did carry out an investigation and remove forensic evidence from a crime scene over the heads of the local police force. The Dutch forces would undoubtedly also have been immune from local jurisdiction under a SOFA agreement. In these circumstances, where the Dutch have in a sense assumed responsibility for an investigation and in doing so arguably prevented the local police from doing one, can they really deny that they owed any obligations?

Martin Holterman says

March 9, 2014

The scope of those status of forces agreements annoys me as much as the next person, but I don't see how the existence of a SOFA is particularly relevant for the scope of human rights obligations. The mere fact that a SOFA was necessary already suggests that territorial jurisdiction was limited, so in those circumstances it seems sensible to limit art. 1 jurisdiction to the kinds of cases we already have: personal jurisdiction over people like soldiers, and territorial jurisdiction over special facilities that were outside the control of the Iraqi government like military bases and prisons.

Put differently, a place or person can't simultaneously be under Iraqi and Dutch jurisdiction. It's one or the other.

Stuart Wallace says

March 10, 2014

The point is that the SOFA agreements place a limit on the territorial State's ability to satisfy HR obligations. If it cannot arrest, detain, question foreign forces on its soil, that State will not have the means to satisfy a procedural obligation to investigate. My point is that the Dutch soldiers limited the capacity of the territorial State to investigate and the SOFA agreement limited the Iraqis jurisdiction over the soldiers. The Dutch assumed the responsibility to investigate and should be held to account for that.

It is also possible for a person to be within the concurrent jurisdiction of two State's at the same time.

Valerio Palombaro says

March 11, 2014

I fully agree that the mere fact a S.O.F.A. was necessary already suggest that jurisdiction was limited. It follows that the country who send troops abroad always retain criminal jurisdiction over its troops.
Thus the jurisdiction question seems already clear, it is sure that Dutch had jurisdiction over its troops and so that Strasbourg Court could intervene.

But other issue is the Court jurisdiction, that is if the Court has jurisdiction rationae materiae over the circumstances and more general if it has the tools to fairly assess human rights violations in armed contexts.