Case Watch: Netherlands Liable over Iraq War Checkpoint Death
By Jonathan Horowitz
In “Case Watch” reports, lawyers at the Open Society Justice Initiative provide analysis of notable court decisions and cases that relate to our work to advance human rights law around the world.
On November 20, the Grand Chamber of the European Court of Human Rights unanimously ruled that the Netherlands violated its obligation to investigate the 2004 shooting death of a man at a checkpoint in Iraq, in a case that added to a growing jurisprudence on the obligation to investigate human rights abuses in times of armed conflict abroad.
Azhar Sabah Jaloud, a 29-year-old Iraqi, was killed when the vehicle in which he was a passenger was fired upon while passing through a checkpoint manned by and under the command and supervision of the Dutch military. A Dutch soldier (Lieutenant A) and potentially Iraqi soldiers fired on the vehicle. Dutch authorities immediately investigated the incident and determined it was unclear whether Lieutenant A or an Iraqi soldier from the Iraqi Civil Defense Corps (ICDC) at the checkpoint killed Jaloud.
The victim’s father sought to hold Lieutenant A accountable for Jaloud’s death, but the Military Chamber of the Arnhem court of Appeal found no reason to prosecute Lieutenant A. It determined that regardless of whether Lieutenant A or an Iraqi soldier killed Jaloud, Lieutenant A had fired his weapon in accordance with the law. Jaloud’s father then brought the case to the European court of Human Rights, where he claimed that the investigation into his son’s death was inadequate. In July 2013, the case was relinquished to the Grand Chamber.
The court’s jurisprudence on extraterritorial application of the Convention is summarized in Al Skeini v. UK. In simplified form, the court recognizes that the Convention applies when a state agent exercises authority and control over a person or when that state maintains effective control over an area.
The Netherlands argued that its troops were acting at the disposal of another state—the United Kingdom—and therefore the incident at the checkpoint did not fall under its jurisdiction. The court disagreed, reasoning that the Netherlands was not relieved of its obligations under the Convention simply because it was not an Occupying Power, or solely by way of the Netherlands acting under the operational command of another country, or by the fact that the ICDC, which was supervised by and subordinate to coalition forces rather than Iraqi authorities, “nominally manned” the checkpoint.
The court weighed heavily the fact that Dutch personnel remained under the “full command” of the Dutch government, i.e., that the Netherlands retained formal authority even if Dutch military operated under British command. The court also emphasized that the Netherlands was responsible for the security in south-eastern Iraq (the area where the checkpoint was located) to the exclusion of other participating states. (For further analysis of these points, see Aurel Sari’s post at EJIL: Talk!)
The court was unpersuaded by the United Kingdom’s intervention, which argued, inter alia, that if the court found there to be a violation it would deter countries from offering their assistance to calls from the UN Security Council to secure international peace and security. Judge Motoc, in a concurring opinion, dismissed the argument as “insubstantial,” explaining that “[s]oldiers who take part in peace-keeping operations or are members of multi-national forces cannot enjoy immunity simply on account of the fact that their state is participating in such operations.”
The court found that Jaloud was killed at a checkpoint “manned by personnel under the command and direct supervision of the Netherlands Royal Army officer,” and in light of the security and control purpose of the checkpoint, the Netherlands therefore exercised its jurisdiction within the limits of its UN-mandated mission and “for the purpose of asserting authority and control over persons passing through the checkpoint.”
The judgment is the first time the court has specifically held that a military checkpoint falls within the extraterritorial scope of the Convention. In doing so, the judgment raises a critical question for Council of Europe members: does the Convention apply to all military checkpoints that have a similar security and control function and are manned by personnel who fall under the command and direct supervision of a member state? There’s a strong possibility it does.
Some questions remain, however. Was it significant that the shooter was a Dutch soldier, or was it significant that the checkpoint was under Dutch command? Does the court’s application of extraterritorial jurisdiction to the checkpoint suggest that its geographic and personal tests might be merging?
On the question of whether the Dutch investigation was effective, the judgment made considerable concessions to the government (as it similarly did in Al Skeini v. UK), saying that the court was “prepared to make reasonable allowances for the relatively difficult conditions under which with Netherlands military and investigators had to work.” The court elaborated, “[i]n particular, it must be recognized 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 … clearly included armed hostile elements.” (For additional analysis of the court’s flexibility, see Marko Milanovic’s piece here.)
The court nonetheless found several inadequacies in the investigation that could not be excused by the extenuating circumstances within which the Dutch soldiers found themselves.
The court criticized the Military Chamber for failing to assess the proportionality of Lieutenant A’s use of force, and criticized the government for not submitting to the Military Chamber relevant interview records it had with ICDC personnel. The court also criticized the government for not including in the evidence file a list containing the names of ICDC personnel who fired their weapons during the incident and for losing fragments of metal identified as bullet fragments that had been taken from Jaloud’s body. Additionally, the court criticized the government for inadequacies in the autopsy process and the Royal Military Constabulary for not taking appropriate steps to reduce the risk of collusion between Lieutenant A and others to distort the truth.
There were several aspects of Jaloud’s father's complaint that the court did not agree with, including argument that the investigation lacked independence and that the Netherlands did not sufficiently involve Jaloud’s father in the investigation.
It is noteworthy that despite the checkpoint shooting occurring in the context of occupied Iraq, during which time international humanitarian law (IHL) is applicable, the Netherlands regarded its authority to use force “not to be found in the jus in bello” but in the Security Council mandate, Rules of Engagement, and its instruction card for the use of force. As a likely result, the court did not approach the checkpoint shooting with consideration to rules on the use of force under IHL.
All in all, governments will likely look unkindly on the court’s ruling in Jaloud v. the Netherlands. They might say the court is being too impractical or unreasonable. They should see it in a different light, however: the court granting the Netherlands latitude for conducting Article 2 investigations in armed conflict abroad. The fact that the court came to few conclusions that would have placed considerable obligations on the Netherlands beyond what it was already willing to do in terms of investigatory measures is a testament to the court’s willingness to take into account the position of states in difficult situations.
Until January 2019, Jonathan Horowitz was a senior legal officer for the Open Society Justice Initiative.