TrustHLT/LaCour huggingface dataset:
Françoise Tulkens (JudgeP): L'arrêt sera rendu ultérieurement et les parties seront informées de la date du prononcé.
Françoise Tulkens (JudgeP): Voilà, je vous souhaite une bonne journée et l'audience est levée.
Dean Spielmann (JudgeP): I declare open the public hearing on the admissibility and merits in the case of Jaloud against the Netherlands.
Dean Spielmann (JudgeP): The application was lodged with the court on the 6th of October, 2008, under Article 34 of the Convention by an Iraqi national, Mr. Sabah Jaloud.
Dean Spielmann (JudgeP): The application was allocated to a chamber of the third section of the court, pursuant to Rule 52, Paragraph 1 of the Rules of Court.
Dean Spielmann (JudgeP): It was communicated to the government on the 6th of December, 2011.
Dean Spielmann (JudgeP): On the 9th of July, 2013, the chamber decided to relinquish jurisdiction in favor of the Grand Chamber, none of the parties having objected to the relinquishment.
Dean Spielmann (JudgeP): On the 15th of October, 2013, leave was granted to the United Kingdom government to submit written comments and take part in the hearing of the third party by virtue of Rule 44, Paragraph 3 of the Rules of Court.
Dean Spielmann (JudgeP): The respondent government are represented by their agent, Mr. Roeland Böcker
Dean Spielmann (JudgeP): of the Ministry of Foreign Affairs, assisted by Dr. Martin Kuijer of the Ministry of Security
Dean Spielmann (JudgeP): and Justice, Mr. Bas Van Hoek of the Public Prosecution Service,
Dean Spielmann (JudgeP): and Commander Henk Warnar of the Ministry of Defense Military Staff Advisors.
Dean Spielmann (JudgeP): The applicant is represented by Ms. Liesbeth Zegveld,
Dean Spielmann (JudgeP): counsel assisted by Mr. Anne Willebrord Eikelboom, counsel.
Dean Spielmann (JudgeP): The United Kingdom government third party are represented by their agent, Ms. Ruth Tomlinson
Dean Spielmann (JudgeP): of the Foreign and Commonwealth Office, assisted by Mr. James Eadie QC counsel,
Dean Spielmann (JudgeP): and by Mr. Jonathan Benson of the Foreign and Commonwealth
Dean Spielmann (JudgeP): Office and Ms. Megan Addis, advisors.
Dean Spielmann (JudgeP): I also welcome a delegation of judges and prosecutors from the Turkish High Council on a study visit to the court.
Dean Spielmann (JudgeP): Having consulted the agent of the government, the representative of the applicant, and the agent of the third party government, I have determined the order of addresses as follows.
Dean Spielmann (JudgeP): Mr. Böcker for the Netherlands government will speak first.
Dean Spielmann (JudgeP): And then Mr. Eikelboom and Ms. Zegveld for the applicant.
Dean Spielmann (JudgeP): And finally, Mr. Eadie for the United Kingdom government.
Dean Spielmann (JudgeP): I would explain that in addition to interpretation between the two official languages of the court, English and French, interpretation to Turkish has been authorized for the benefit of the group of judges and prosecutors from Turkey.
Dean Spielmann (JudgeP): That interpretation has not been arranged by the court.
Dean Spielmann (JudgeP): I call Mr. Böcker.
GR1 (Government): Mr. President, members of the Grand Chamber, Mr. Vice-Registrar, ladies and gentlemen,
GR1 (Government): good morning.
GR1 (Government): Mr. Jaloud alleges a violation by the government of the Netherlands of one of the most fundamental
GR1 (Government): rights enshrined in the European Convention on Human Rights, the right to life set out in Article 2 of the Convention.
GR1 (Government): There is no disagreement between the parties about the fact that Mr. Jaloud's son Azar
GR1 (Government): died tragically nearly 10 years ago in the close proximity of Dutch troops in the Iraqi province of Al-Mutana.
GR1 (Government): Nor is there any dispute about the fact that it cannot be excluded that Azar died from one or more bullets fired by Dutch military personnel.
GR1 (Government): The parties do, however, fundamentally disagree on the applicability of the Convention to those circumstances.
GR1 (Government): More specifically, they disagree on the preliminary question of whether Azar could be considered to be within the jurisdiction of the Netherlands as required by Article 1 of the Convention.
GR1 (Government): The government's firm answer to that question is in the negative.
GR1 (Government): I will first of all explain the reasons underlying our position before discussing the merits of the application.
GR1 (Government): In doing so, I wish to refer the Grand Chamber to our written memorial of 19 November 2013, which includes numerous references to the Court's relevant case law.
GR1 (Government): Likewise, I refer to the written observations of 22 November 2013 of the Government of the United Kingdom on the issue of jurisdiction, which point in the same direction.
GR1 (Government): My presentation today is intended to amplify, not to replace, our written comments.
GR1 (Government): Mr. President, the Court's case law on the question of extraterritorial jurisdiction
GR1 (Government): is, frankly speaking, not always easy to grasp.
GR1 (Government): Only in recent years, scholars and others have frequently crossed swords with one another on the issue, and many shades of grey may be distinguished in the debate.
GR1 (Government): Central to this debate are the concepts of authority and control, either over a territory or over a person, and the question of how these concepts relate to one another.
GR1 (Government): One principle, however, stands firmly beyond discussion, both in the Court's case law itself and in scholarly publications.
GR1 (Government): The term jurisdiction, as it appears in Article I, has an essentially territorial meaning.
GR1 (Government): Extraterritorial interpretation is the exception to the rule, and must therefore at all times be demonstrated by the existence of exceptional circumstances.
GR1 (Government): Failing such circumstances, the rule of territoriality applies.
GR1 (Government): Obviously, opinions differ about the criteria for assuming the existence of exceptional circumstances.
GR1 (Government): One thing, however, should be clear.
GR1 (Government): Extraterritorial jurisdiction cannot simply be equated to any state activity performed abroad or producing effects abroad.
GR1 (Government): To hold otherwise would render the term jurisdiction meaningless and the first article of the Convention superfluous.
GR1 (Government): As the Court rightfully acknowledged in its decision in the case of Bankovic and others versus Belgium and others, should the high contracting parties to the Convention have had in mind a concept of jurisdiction without territorial limits, they could simply have used language similar to the first article of the four Geneva Conventions, which were adopted merely a year before the European Convention on Human Rights.
GR1 (Government): By not doing so, they expressed reluctance to globalizing through legal means the primarily regional nature of the human rights instrument they were about to create.
GR1 (Government): This reluctance is still key to the Government's position today.
GR1 (Government): Unilateral and unlimited export of the Convention's standards stands more chance of weakening the European human rights system than strengthening its global counterpart.
GR1 (Government): In the course of many years, the Court and its predecessors have therefore scrupulously introduced and maintained a watershed between situations which were capable of engaging jurisdiction for conventional purposes and situations that were not.
GR1 (Government): Without wishing to discuss here and now each and every relevant case, I think it is safe to conclude that in all of these cases specific elements may be distinguished which, either by themselves or taken together with other such elements, may qualify as exceptional circumstances justifying the existence of extraterritorial jurisdiction, be it overall control by a respondent state over foreign territory resulting from its military presence, the status of occupying power under international law, or detention of the applicant by the respondent state on foreign territory or on the high seas.
GR1 (Government): Also other cases in which extraterritorial jurisdiction was accepted, such as acts of diplomatic and consular agents when they exert authority and control over others, are far removed from the present case.
GR1 (Government): The Government submits that no such exceptional circumstances existed in the present case.
GR1 (Government): The mere presence of Dutch troops at the relevant location and their narrowly defined role are, in the light of all precedents, clearly insufficient to establish jurisdiction.
GR1 (Government): The ensuing chain of events, tragic as its outcome undoubtedly was, is not in itself capable of establishing jurisdiction.
GR1 (Government): Any different conclusion would weaken the watershed emanating from the Court's case law and disturb the balance it represents.
GR1 (Government): Let's have a closer look at the circumstances of this case in order to determine whether they meet this test of exceptionality.
GR1 (Government): There is hardly any reason for me now to provide a detailed description of the international law background of the multinational presence in Iraq.
GR1 (Government): In its judgment in the case of al-Skaini and others versus the United Kingdom, the Court has already done so.
GR1 (Government): Suffice for me to remind at this juncture that the Security Council, acting under Chapter 7 of the Charter of the United Nations, on 22 May 2003 adopted Resolution 1483, which provided the legal basis for the subsequent presence of international forces in Iraq.
GR1 (Government): This resolution specifically designated the United States and the United Kingdom as occupying powers acting under unified command, referred to as the coalition provisional authority.
GR1 (Government): Other states working under that authority were expressly qualified as states that are not occupying powers.
GR1 (Government): This is where the present case comes into play.
GR1 (Government): The Netherlands was one such state since, at the relevant time, April 2004, it had a contingent of some 1,300 military personnel deployed in southeast Iraq.
GR1 (Government): Operational control over these forces was transferred to the British commander of the multinational division southeast of the stabilization force in Iraq, who was himself subordinate to the United States military authorities in Baghdad and Tampa, Florida.
GR1 (Government): The Dutch forces were thus subordinates to British and American commanders, respectively.
GR1 (Government): Arrangements were laid down in a memorandum of understanding, including rules of engagement.
GR1 (Government): For ease of understanding, the latter rules were reproduced by the Dutch Ministry of Defense in an ad memoir for commanders and a soldier's card.
GR1 (Government): The Netherlands made a number of specific reservations to the task formulated for the multilateral force.
GR1 (Government): It made clear that it was for the U.S. and the U.K. to undertake civil administrative
GR1 (Government): tasks, that it was for the Iraqi authorities to develop executive law enforcement, including arrest for purposes of criminal prosecution and seizure of goods, and that the Netherlands would not detain people.
GR1 (Government): It follows from what I have just said that the Netherlands was in a fundamentally different position from the United Kingdom, the respondent state in the Al-Skaini case, in which the Grand Chamber accepted the existence of extraterritorial jurisdiction.
GR1 (Government): Certainly, both states had troops deployed in the area, working for the same goal and under the same umbrella.
GR1 (Government): But this is where the comparison stops.
GR1 (Government): In contrast to the U.K., the Netherlands was not designated as an occupying power, neither
GR1 (Government): in law nor in fact.
GR1 (Government): The Netherlands lacked operational control, which it had expressly transferred to the British commander of the multinational division Southeast.
GR1 (Government): The number of Dutch troops was far more limited than the British troops, 1,300 as opposed to 8,600.
GR1 (Government): And on top of that, the powers of the Dutch troops were further limited by a number of reservations as to their task.
GR1 (Government): In order to avoid any misunderstanding, let me stress that the transfer of operational control to foreign command does not mean that all links with the Netherlands were severed.
GR1 (Government): Just as it had taken a sovereign decision to contribute troops, the Netherlands retained the prerogative to withdraw its troops from the multinational force, if it so wished.
GR1 (Government): A national contingent commander was deployed with the forces as representative of the Dutch chief of defense in order to verify whether the instructions given by the operational command remained within the boundaries of the mandate and national reservations.
GR1 (Government): But he operated strictly outside the chain of command.
GR1 (Government): Furthermore, since the court raised this issue in its letter to the parties of 4 September 2013, I should observe that criminal and disciplinary jurisdiction remained with the Dutch authorities as usual.
GR1 (Government): As the UK government rightly concludes in its written observations, this exclusively concerns the relation between the individual serviceman and his employer and does not engage the relationship between the Netherlands and the applicant.
GR1 (Government): These perfectly normal circumstances in no way weaken the conclusion that the Netherlands was not an occupying power.
GR1 (Government): We find further support for that conclusion in the Al-Skaini judgment at paragraph 143, where the court first recalls that the United States, the United Kingdom and their coalition partners entered Iraq, and then goes on to qualify only the former two states as occupying powers.
GR1 (Government): The fact that the court specifically refers to a state other than the respondent state, namely the United States, which obviously was not a party to the case and which is under no circumstance bound by the court's judgment, confirms that the court had in mind a limitative list of occupying powers here and expressly did not address coalition partners, even though its judgment might potentially be of great legal importance to the European states among them.
GR1 (Government): Mr. President, the conclusion so far is that the position of the Netherlands in Iraq in
GR1 (Government): general terms was in no way indicative of the existence of extraterritorial jurisdiction with regard to situations such as in the present case.
GR1 (Government): I recall that, failing such indication, the normal rule of territorial jurisdiction applies.
GR1 (Government): So let's now focus on the particular circumstances surrounding the events that led to Azar Jaloud's death.
GR1 (Government): One of the tasks of the Dutch contingent was, within capabilities, to support the organization and training of the Iraqi Civil Defense Corps, the ICDC.
GR1 (Government): In the fulfillment of this and other tasks, the use of force was permitted only if strictly necessary and as a means of last resort.
GR1 (Government): It is worth noting that the instructions referred, in so many words, to an attack by a car as an example of a situation in which the use of force may be permitted, provided, of course, the test of strict necessity is met.
GR1 (Government): It was in the fulfillment of the task of support to the ICDC that the Dutch patrol of six soldiers led by Lieutenant A, or is it Lieutenant A?
GR1 (Government): I'm never sure if it's Lieutenant or Lieutenant.
GR1 (Government): In any case, on a mission monitoring ICDC vehicle checkpoints near the town of Ar-Ramayta was requested by the ICDC to come and help investigate shooting from a car at one such checkpoint, only minutes after the incident had happened.
GR1 (Government): In the course of this investigation, a second car appeared, which hit the barrels forming the checkpoint and then continued in the direction of the lieutenant and others.
GR1 (Government): Shots were fired at the vehicle, including 28 rounds by the lieutenant, who was under the impression of being attacked.
GR1 (Government): After the car had stopped, it was discovered that the passenger, Azar Jalut, was injured.
GR1 (Government): He died one hour later from his injuries.
GR1 (Government): Now I'm keeping this resume deliberately short, not only because the Grand Chamber has been meticulously informed by both parties about any relevant details, but also because my intention at this point is to determine whether the situation on the ground would justify the conclusion, different from the overall picture I discussed before and in contrast to the general rule, that the Netherlands, through the operation of its troops in this particular event, exercised extraterritorial jurisdiction.
GR1 (Government): We submit that this is not the case.
GR1 (Government): The Dutch role vis-à-vis the ICDC was one of monitoring and support.
GR1 (Government): Precisely in the supporting role, a handful of Dutch military personnel assisted in the investigation of an incident, only to find that they got caught in what appeared to be a continuation of the hostilities that had been reported to them.
GR1 (Government): Their response inevitably occurred instantaneous and remained fully within the instructions concerned the use of force.
GR1 (Government): The fact that the lieutenant apparently erred on the intentions of those driving the vehicle is, although tragic, not decisive in engaging jurisdiction.
GR1 (Government): Mr. President, from all perspectives, the answer to the question whether the case includes
GR1 (Government): exceptional circumstances justifying the departure from the rule of extraterritorial jurisdiction remains negative.
GR1 (Government): The Netherlands had limited presence and powers in southeast Iraq.
GR1 (Government): It had no control over any part of Iraq.
GR1 (Government): It did not detain the victim or exercise any other measure of authority or control over his actions, nor did it plan, initiate, or even foresee any action against the victim.
GR1 (Government): The encounter of the Dutch and Azar Jaloud was the result of pure coincidence.
GR1 (Government): An unfortunate coincidence, yes, certainly, but still a coincidence.
GR1 (Government): As such, this case is clearly different from any other case the court and its predecessors have judged upon.
GR1 (Government): Applying the extraterritorial exception to the present case would, therefore, not only jeopardize the whole meaning of the first article of the Convention, but also affect the ability of the international community to cooperate effectively under Chapter 7 of the United Nations Charter and the willingness of states to contribute to such cooperation.
GR1 (Government): Mr. President, let me then turn to the merits of the application.
GR1 (Government): Obviously my comments are without prejudice to our view on jurisdiction, which logically implies that no duty to investigate under Article 2 of the Convention arises.
GR1 (Government): Our position regarding the merits of the application hinges on two premises.
GR1 (Government): I apologize.
GR1 (Government): First, the investigation was in full conformity with the requirements of Article 2.
GR1 (Government): I hope to demonstrate this in a moment.
GR1 (Government): Second, and closely related to the absence of jurisdiction, which I have amply discussed, an investigation in Iraq in 2004 by Dutch authorities cannot simply be equated with any investigation in the domestic sphere.
GR1 (Government): The Royal Dutch Constabulary, the Koninklijke Maritie-Gesellschaft, or K-MAR, as I will call it as of now, was responsible for the on-the-spot investigation in order to assess whether the use of force by Dutch military personnel was contrary to the applicable rules of engagement and led to criminal responsibility.
GR1 (Government): The K-MAR lacked the authority to investigate the conduct of anyone other than Dutch troops and had to respect Iraqi laws and customs at all times.
GR1 (Government): As a result, the K-MAR was very often dependent on the cooperation of Iraqi authorities, police, judicial and other.
GR1 (Government): In this atmosphere of mutual cooperation, it was often possible to conduct investigative measures which, strictly speaking, fell outside the competencies of the K-MAR.
GR1 (Government): However, the K-MAR was never in a position to enforce investigative measures pertaining to others than the Dutch military personnel.
GR1 (Government): It did not have the power to seize or to take custody of any goods not belonging to Dutch military personnel.
GR1 (Government): In the present case, the ICDC sergeant was willing to temporarily hand over his weapon.
GR1 (Government): The Iraqi police officers acquiesced in the transport of the Mercedes for investigative purposes.
GR1 (Government): Different from what the applicant suggests in his written submissions, the driver of the car was not apprehended and kept in custody on the Dutch Camp Smitty.
GR1 (Government): The Dutch did not have the power to take such measures.
GR1 (Government): As far as the government knows, the driver did himself come to the camp the next day to inform about his car.
GR1 (Government): Apart from all of this, the investigation had to be carried out in a volatile environment and taking into account the interests of an ongoing military operation.
GR1 (Government): The first stages of the investigation took place at a spot which shortly beforehand had been the object of an armed attack and might well come under further attack.
GR1 (Government): Furthermore, in the spring of 2004, there was a rise of violent attacks on Dutch military personnel.
GR1 (Government): Camp Smitty, where the blue K-MAR was located, came repeatedly under mortar attack, including during the night of the 21st to the 22nd of April.
GR1 (Government): The ensuing investigations had an impact on the availability of interpreters and investigators.
GR1 (Government): An investigator actually died a couple of months later in the line of duty.
GR1 (Government): The applicant attaches no weight to these circumstances and refers to case law set in purely domestic circumstances, notably the court's judgment in the case of Kaya v. Turkey.
GR1 (Government): A misleading comparison, as I have just explained.
GR1 (Government): The Kaya judgment was concerned with the security situation in southeast Turkey, i.e. within
GR1 (Government): the territory of the respondent state.
GR1 (Government): The Turkish authorities were empowered to conduct all necessary investigative measures.
GR1 (Government): It is precisely this aspect which is lacking in the present case.
GR1 (Government): As I said before, the K-MAR did not have the formal competencies to conduct an overall investigation besides assessing the use of force by Dutch military personnel.
GR1 (Government): Given these limitations, we submit that the investigation was fully in line with the benchmarks developed in the court's case law.
GR1 (Government): I refer in particular to the court's judgment in the case of Ramzahei and others v. The
GR1 (Government): Netherlands.
GR1 (Government): Not because we feel that an investigation in the southeast of Iraq is similar to an investigation in the southeast of Amsterdam, I have just explained why it is not, but simply because the Grand Chamber drew attention to that judgment in its letter to the parties of 4 September 2013.
GR1 (Government): In Ramzahei, the Grand Chamber confirmed that an investigation is effective if it is capable of leading to a determination of whether the use of force was or was not justified in the circumstances and to the identification and punishment of those responsible.
GR1 (Government): The Grand Chamber specifically adds that this is not an obligation of result, but one of means.
GR1 (Government): The authorities must have taken the reasonable steps available to them when conducting the investigation.
GR1 (Government): Applying these rules to the present case, it may first be concluded that the investigation was taken up promptly.