TrustHLT/LaCour huggingface dataset:
GR1 (Government): The lieutenant immediately reported the incident, and K-Mar officers arrived at the scene a mere two hours after the incident.
GR1 (Government): Furthermore, the investigation was carried out independently by persons who were fully independent from the military chain of command and responsible to the public prosecutor only.
GR1 (Government): The public prosecutor was informed of the investigation at the earliest possible stage and was thus able to give directions, which in fact he did. Contrary to the applicant's
GR1 (Government): statements, the K-Mar operated from Camp Smitty in As-Samawa and not from the Dutch base in Arumaita, where the lieutenant and his troops resided.
GR1 (Government): Nor does the investigation raise any suspicion of bias. The results were, moreover, assessed
GR1 (Government): by the public prosecutor in Arnhem and, eventually, by the Arnhem Court of Appeal.
GR1 (Government): Thus, one is of the opinion that a decision not to prosecute in this case can only be the fruit of biased investigation, which obviously is not the government's opinion. We conclude
GR1 (Government): that the independence of the investigation into the death of Azar Jalut was by no means jeopardized and met with the requirements of the Convention.
GR1 (Government): The investigation was also carried out thoroughly. The investigators immediately made a descriptive
GR1 (Government): sketch of the scene and secured the trace evidence. They photographed shell casings
GR1 (Government): and cartridges. All officers and interpreters, including some 10 ICDC members, were interviewed.
GR1 (Government): The driver of the Mercedes was interviewed for an hour, not for mere 10 minutes, as the applicant suggests. The car was examined for points of impact, the size of the bullet holes,
GR1 (Government): gunshot residue, and the trajectory of the bullets. It was thus established that shots
GR1 (Government): had been fired both by Dutch and Iraqi soldiers. An autopsy was performed under Iraqi responsibility
GR1 (Government): by a forensic pathologist at the local hospital in Assamawa.
GR1 (Government): It may very well be, as the applicant alleges at great length in his written submissions, that certain aspects of the investigation could have been performed in a different manner.
GR1 (Government): Generally those differences may be explained by the context of the investigation, which I described earlier. Moreover, diverging views on procedural steps are almost inherent in
GR1 (Government): any criminal investigation. Nevertheless, even considering the difficult
GR1 (Government): circumstances surrounding the investigation, the Government acknowledges that matters could and should have been treated differently in two respects. The autopsy report should have
GR1 (Government): been translated and the provision of information towards the victims next of kin should have been more forthcoming. These deficiencies, however, do not lead to the conclusion that
GR1 (Government): Article 2 of the Convention was violated. The legal relevance of the autopsy report,
GR1 (Government): which in the meantime has been translated into English and which is in the Court's file, its legal relevance was limited in the light of the KMAR's task to establish whether the Lieutenant had acted in a reprehensible manner. Since it was established that he could reasonably
GR1 (Government): have assumed to have been under attack and that he acted in self-defence, it was irrelevant whether he had in fact fired the fatal bullet. This approach was later confirmed by the Court
GR1 (Government): of Appeal in Arnhem. As to the involvement of the victims next of
GR1 (Government): kin, the Court has found that it cannot be regarded an automatic requirement under Article 2 that the deceased victim surviving next of kin be granted access to the ongoing investigation.
GR1 (Government): Access of the public or the victim's relatives may be provided for in other stages of the procedure, such as the initiation of complaint proceedings in accordance with Section 12 of the Code of Criminal Procedure. The applicant was given access to the information yielded
GR1 (Government): by the investigation to a degree sufficient for him to challenge the decision not to prosecute the Lieutenant. That being said, our task here today, and
GR1 (Government): what is more important, your task, the task of the Court, is not to assess each and every detail of the procedure, but to establish whether the procedure was capable of determining who was responsible for the use of force and whether the use of force was or wasn't justified under the circumstances. The answers found as a result of the investigation
GR1 (Government): were that the Lieutenant was responsible for the use of force, leaving aside any participation of Iraqi troops in the shooting, which the KMAR was not authorised to investigate, and that the use of his weapon was justified in an act of self-defence.
GR1 (Government): The Lieutenant's apparent error as to the intentions of those driving the car was considered excusable, having regard to the preceding car attack, the fact that shots were fired from the back of that car, the shots fired by others which the Lieutenant took to be shots directed at him from the Mercedes, as well as the fact that the Mercedes, after hitting the checkpoint, did not stop immediately but continued in his direction. I stress once
GR1 (Government): again, the Government's obligation in this regard is one of means, not of result.
GR1 (Government): Mr President, having nearly arrived at the end of my presentation, I should say a few words on the applicants' claims for just satisfaction, costs and expenses. Of course, my comments
GR1 (Government): only apply in case the Court should be of the view that the Convention is applicable and that a violation of Article 2 has occurred.
GR1 (Government): The applicant first of all requests the Ground Chamber to order the Government to carry out a fresh investigation into the death of Azar Jalut. Our primary response would be that
GR1 (Government): it is nearly, if not utterly, unrealistic to expect any additional outcome from an investigation in Iraq conducted from the Netherlands ten years after the facts. Furthermore, we recall
GR1 (Government): that one important principle underlying the Convention and the Court's case law is that it is up to the respondent state to choose the means by which it will discharge its legal obligation under Article 46, paragraph 1 of the Convention, provided such means are compatible with the conclusions set out in the Court's judgment.
GR1 (Government): It falls to the Committee of Ministers of the Council of Europe, acting under Article 46, paragraph 2 of the Convention, to supervise compliance with the judgment. The Government
GR1 (Government): is well aware of case law in which the Court has nevertheless indicated to the respondent Government the means by which to execute its judgment, but this was restricted to cases which either were repetitive in nature or left no room for any alternative measure.
GR1 (Government): Both situations, we submit, are not at issue here. The applicant furthermore claims an
GR1 (Government): amount of €25,000 in compensation for non-pecuniary damage suffered. In this respect, the Government
GR1 (Government): will refer itself to the Grand Chamber's judgment, while merely recalling that the sum awarded to the applicants in the Al-Skyni case amounted to €17,000 each.
GR1 (Government): Finally, as the Grand Chamber has been informed by the Applicants' Council in her written submissions, the applicant is provided with legal aid under domestic law. No further financial
GR1 (Government): issue would appear to arise in this regard.
GR1 (Government): Mr President, Distinguished Members of the Grand Chamber, I thank you for your attention.
Dean Spielmann (JudgeP): Thank you, Mr. Böcker. I give the floor to Mr. Eikelboom.
AP1 (Applicant): Mr. President, members of the Court,
AP1 (Applicant): when he was shot dead, there was a jurisdictional link between Mr. Gelut and the Netherlands.
AP1 (Applicant): This logically flows from Article 1 of the Convention, and it sits comfortably with the Court's case law on the matter of extraterritorial jurisdiction, in particular the already mentioned case of El Skaini, which bears so much resemblance to this case.
AP1 (Applicant): We believe that it is essential to view the matter on three levels.
AP1 (Applicant): First, the formal legal framework.
AP1 (Applicant): Second, the factual situation on the ground in general.
AP1 (Applicant): And third, the actual situation at the checkpoint at the moment of the shooting.
AP1 (Applicant): I will start with the legal framework.
AP1 (Applicant): At the relevant time, Iraq was not an independent, sovereign state.
AP1 (Applicant): The regime of Saddam Hussein had been toppled by a multilateral coalition consisting of several states.
AP1 (Applicant): And at the time of issue, April 2004, the war had ended, and the land of Iraq was under occupation.
AP1 (Applicant): Civilian authority was exercised by the coalition provisional authority, and meanwhile, a military force, or SFIR, was established, tasked with maintaining public order and security.
AP1 (Applicant): This was a multinational force, and the Netherlands was part of this force.
AP1 (Applicant): The deployment of Dutch troops to post-war Iraq was subject to heated domestic, public, and political debate.
AP1 (Applicant): Historically, occupation is a very sensitive subject to the Dutch.
AP1 (Applicant): And for this reason, the government have always emphatically denied that the Dutch troops would take part in any occupation of Iraq.
AP1 (Applicant): The distinction in the preamble of Security Council Resolution 1483 between occupying and non-occupying powers, which can be considered public law novelty, was something for which the Dutch government had particularly strived.
AP1 (Applicant): However, in international humanitarian law, the concept of occupation is a question of fact rather than law.
AP1 (Applicant): The Netherlands may not have formally declared itself an occupying power.
AP1 (Applicant): It may even have publicly pronounced that it was not an occupying power as it has done and as it maintains.
AP1 (Applicant): Security Council Resolution may have stated that only the United States and the United Kingdom were occupying powers.
AP1 (Applicant): But all of this is not decisive.
AP1 (Applicant): Decisive is the factual situation.
AP1 (Applicant): A territory is considered occupied when it is actually placed under the authority of an army.
AP1 (Applicant): And as we shall see, the factual situation was such that at the relevant point in time in the relevant territory, the Netherlands had such authority.
AP1 (Applicant): The United Kingdom was the so-called lead nation in southern Iraq.
AP1 (Applicant): But it had no troops in the province of Al-Muthana.
AP1 (Applicant): This was where the Dutch were stationed, over 1,300 soldiers in a province of around 450,000 inhabitants.
AP1 (Applicant): The Asper mandate in Al-Muthana was thus for the Netherlands to carry out.
AP1 (Applicant): The Dutch government itself was worried that it might de facto be considered an occupying power.
AP1 (Applicant): And this was the reason why, according to the official evaluation report of the mission, which is in your file, a number of caveats were made.
AP1 (Applicant): Caveats to the memorandum of understanding, which was signed with the United Kingdom.
AP1 (Applicant): For reasons we can only guess, the government have chosen not to share the contents of this MOU or of the caveats, either with us or with the court.
AP1 (Applicant): We would have thought that it would have been important for the government to share the contents of these documents.
AP1 (Applicant): Since we're the mandate of the military force in which the Netherlands took part, included clear public tasks, such as public order and stability, and where the government claim an exception in this regard, we believe that the obligation is on the government to prove this exception.
AP1 (Applicant): Not having shared the relevant documents in this respect, the government, we believe, has not met with this obligation.
AP1 (Applicant): Fortunately, a great deal of information has become apparent from other sources.
AP1 (Applicant): For example, the letter by which the Dutch government informed its own parliament about the military mission.
AP1 (Applicant): This letter lists the tasks to be performed by the Dutch troops.
AP1 (Applicant): And these tasks include the following.
AP1 (Applicant): The restoration and maintenance of security and stability in the country.
AP1 (Applicant): The support of coalition activities relating to the protection and dismantling of the then presumed weapons of mass destruction.
AP1 (Applicant): The removal of the remains of the regime of Saddam Hussein.
AP1 (Applicant): Securing police stations and public utilities.
AP1 (Applicant): And generally maintaining public order.
AP1 (Applicant): It is clear that these are all functions of public authority.
AP1 (Applicant): The letter to parliament also makes clear that while the United Kingdom was the lead nation in Southeastern Iraq, the Dutch troops acted as an independent unit.
AP1 (Applicant): And that the Netherlands retained at all times full command over the Dutch military.
AP1 (Applicant): The UK commander may have issued general policy, but it was the national commander to decide, independently from the British, how to implement this in practice.
AP1 (Applicant): I would like to point out that in the court's judgment in Al-Jadda, paragraph 80, it is stated that the court does not consider that as a result of the authorization contained in resolution 1511, the acts of soldiers within the multinational force cease to be attributable to the troop contributing nations.
AP1 (Applicant): These troop contributing nations clearly does not just refer to the United States and the United Kingdom, but to all nations involved.
AP1 (Applicant): And this includes the Netherlands.
AP1 (Applicant): It is also notable that the Netherlands have formally declared that it would abide by the obligations under the law of occupation.
AP1 (Applicant): Something which would be unnecessary if it was indeed not an occupying power.
AP1 (Applicant): Indeed, this was how it worked out in practice.
AP1 (Applicant): The government have even acknowledged, with so many words, that the Dutch troops were involved in law enforcement, at least until an unspecified moment in the course of 2004.
AP1 (Applicant): Throughout the mission, civilians were arrested.
AP1 (Applicant): They were detained, and sometimes interrogated.
AP1 (Applicant): These are all public powers.
AP1 (Applicant): This is law enforcement.
AP1 (Applicant): Mr. President, I will now turn to the third level
AP1 (Applicant): mentioned earlier, the situation at the checkpoint at the time of the shooting.
AP1 (Applicant): In that night of 24 April 2004, the Dutch soldiers were at the checkpoint in an official capacity.
AP1 (Applicant): In the words of Lieutenant A himself, they were there to view and instruct the members of the ICDC, the Iraq Civil Defense Corps.
AP1 (Applicant): This was more than monitoring and support, which is how the government attempted to downplay the role of the Dutch soldiers at the checkpoint.
AP1 (Applicant): But all available information points in one direction, which is that the ICDC members were subordinate to the Dutch troops.
AP1 (Applicant): The Dutch would decide where a checkpoint was to be put up.
AP1 (Applicant): The Dutch would deploy ICDC units to those checkpoints.
AP1 (Applicant): The Dutch were responsible for the ICDC ammunition supply.
AP1 (Applicant): And indeed, Lieutenant A himself has stated that he was the functional commander of the ICDC team.
AP1 (Applicant): Therefore, when the victim drove into the checkpoint, he was effectively under the authority and control of the Netherlands.
AP1 (Applicant): And the role of the Dutch at the checkpoint is perhaps most clearly illustrated by the actions of the Dutch after the shooting incident had occurred.
AP1 (Applicant): This was where the royal constable, or Kmar, entered the scene to investigate.
AP1 (Applicant): As my colleague will explain, this investigation was wholly inadequate.
AP1 (Applicant): But it has to be acknowledged that something was done and that what was done in terms of investigation and law enforcement was done by the Netherlands.
AP1 (Applicant): And in doing so, the royal constable exercised a number of powers which only a public authority possesses.
AP1 (Applicant): Witnesses were questioned, not just the Dutch soldiers, but also ICDC members and Iraqi civilians.
AP1 (Applicant): The weapon of the Iraqi ICDC commander was seized.
AP1 (Applicant): The vehicle belonging to the driver was seized.
AP1 (Applicant): And the remains of the victim were taken to the Dutch base and kept there, despite considerable opposition from the Iraqi police.
AP1 (Applicant): After the investigation had been finalized, finally, the constable, in his own words, released the location to the public.
AP1 (Applicant): Naturally, all these actions could only be performed if the Netherlands had the necessary authority to do so, which, it must be concluded, it had.
AP1 (Applicant): In El Skainy, the court found that there was a jurisdictional link between the victims and the United Kingdom for the following reasons.
AP1 (Applicant): First, the United Kingdom was found to have assumed in Iraq the exercise of some of the public powers normally to be exercised by a sovereign government, in particular for the maintenance of security of a portion of the country.
AP1 (Applicant): Under those circumstances, the court found that the United Kingdom, through its soldiers, exercised authority and control over individuals killed in the course of security operations.
AP1 (Applicant): We respectfully submit that the situation in the present case is sufficiently similar to that in El Skainy in order to come to the same conclusion.
AP1 (Applicant): As we have argued, the Netherlands were, in fact, an occupying power.
AP1 (Applicant): But even if that position is not shared, the Netherlands did exercise some of the public powers normally to be exercised by a sovereign government.
AP1 (Applicant): And these were exercised in particular in the maintenance of security.
AP1 (Applicant): And this in itself, we believe, is sufficient.
AP1 (Applicant): For if it were not sufficient and it was deemed that only the formal occupier could have extraterritorial jurisdiction through the acts of its soldiers, this would leave an unacceptable vacuum in the protection offered by the Convention.
AP1 (Applicant): To the present case, it would mean that the formal occupier, the United Kingdom, could subcontract part of its powers and responsibilities to another contracting state, the Netherlands, which would then declare itself a non-occupying force, as is actually done in the present case.
AP1 (Applicant): But because neither state would both have the formal status of occupier and have carried out the operation in practice, neither contracting party could be held accountable under the Convention.
AP1 (Applicant): It is for this reason that the Court has rightly found that the status of occupier is not determining.
AP1 (Applicant): By applying the right criterion in Alskany of exercise of a public power, the Court has justly avoided this vacuum.
AP1 (Applicant): Mr. President, it is amply established
AP1 (Applicant): that the Netherlands exercised public powers, and that they did so independently from the United Kingdom.
AP1 (Applicant): Since Mr. Julloet was killed in the course of an operation
AP1 (Applicant): by Dutch soldiers, this creates a jurisdictional link between him and the Netherlands.
AP1 (Applicant): It is not so that such jurisdiction can only exist if the victim is detained, as the government have argued.
AP1 (Applicant): One merely needs to look at the situation of the third applicant in Alskany to realize that this argument cannot be sustained.
AP1 (Applicant): After all, that third applicant was sitting at a dinner table in her own home when she was fatally hit by a bullet.
AP1 (Applicant): That fact, or even the fact that it was unclear whether a UK soldier had even fired the fatal bullet, did not prevent the Court from finding that there was a jurisdictional link.
AP1 (Applicant): We would submit that the Dutch soldiers had a far larger degree of control over Mr. Julloet at the checkpoint
AP1 (Applicant): than the UK soldiers did over the accidental victim in Alskany.
AP1 (Applicant): This is also not a matter of jurisdiction following the bomb or following the bullet, a notion which was rejected in Bankovic.
AP1 (Applicant): Mr. Julloet was not suddenly hit by a deadly force from the sky,
AP1 (Applicant): as he was within his own country under control of his own government.
AP1 (Applicant): He was deliberately shot at while he was in the area of authority and control of the Netherlands for the reason that he did not timely comply with the order by the Dutch army to stop the vehicle.
AP1 (Applicant): The bullets themselves did not create jurisdiction, but the firing of the bullets was a result of the authority and control which establishes this jurisdiction and the responsibility which comes with it.
AP1 (Applicant): Mr. President, Mr. Julloet was in the province of Almatana,
AP1 (Applicant): where the multinational force was represented by the Dutch.
AP1 (Applicant): He was at the checkpoint, which was installed and supervised by Dutch soldiers.
AP1 (Applicant): Dutch soldiers and Iraqis supporting it to the Dutch were present.
AP1 (Applicant): In that context, Mr. Julloet was fired
AP1 (Applicant): at by the highest officer at the scene, a Dutch officer.
AP1 (Applicant): The required jurisdictional link was clearly established, and the application must be deemed admissible.
AP1 (Applicant): I will now hand the floor to my colleague, who will discuss the merits of the case.
Dean Spielmann (JudgeP): Thank you, Mr. Eikelboom.
Dean Spielmann (JudgeP): Ms. Zegveld.
AP2 (Applicant): Thank you, Mr. President, members of the court.
AP2 (Applicant): I would like to address two propositions today.
AP2 (Applicant): First, that the investigation into the fatal shooting was deficient, particularly in that it failed to investigate the alleged shooting by the ICDC members, the Iraqi Civil Defense members.
AP2 (Applicant): And second, that the investigation was also ineffective in the sense that it failed to involve in any respect the applicants.
AP2 (Applicant): We, of course, maintain all our other propositions that were submitted to you in the written rounds.
AP2 (Applicant): But for today, we would like to focus on these two core propositions.
AP2 (Applicant): This case concerns two young Iraqi civilians who drove into a vehicle checkpoint on the main supply route Jackson.
AP2 (Applicant): Now, when you read the file, and when you listened this morning to Mr. Bucker, you may have thought
AP2 (Applicant): that these two young Iraqi men ignored the checkpoint, that they failed to stop while they were required to do so, and that for that reason, they were shot at.
AP2 (Applicant): But that, and I wish to emphasize, that is not the case.
AP2 (Applicant): Cars were not required to stop at this particular checkpoint.
AP2 (Applicant): The checkpoint consisted of a few barrels that were not blocking the road.
AP2 (Applicant): They were not placed across the road, obstructing the traffic.
AP2 (Applicant): Cars could pass freely until they were given a signal to stop, a signal not given in this particular case.
AP2 (Applicant): And indeed, apart from a few barrels, the checkpoint was not even indicated.
AP2 (Applicant): It was not even lit.
AP2 (Applicant): And so Mr. Jalut and his friends were suddenly confronted
AP2 (Applicant): with barrels, and they hit two of them.
AP2 (Applicant): The Dutch soldier, Lieutenant A, emptied his full cartridge on the car, 28 bullets.
AP2 (Applicant): He only stopped, as he declared, he only stopped firing as he had no ammunition left.
AP2 (Applicant): Mr. Jalut was hit in his left and middle chest,