TrustHLT/LaCour huggingface dataset:
AP2 (Applicant): his left hip, his left arm, his left lower arm.
AP2 (Applicant): Lieutenant A was on the left side on the road.
AP2 (Applicant): He died on the scene one hour later.
AP2 (Applicant): Mr. President, it goes without saying that firing 28 bullets
AP2 (Applicant): at two innocent men is entirely disproportionate and unnecessary.
AP2 (Applicant): Yet the Dutch prosecutor decided that Lieutenant A's conduct was legitimized as putative and excessive self-defense.
AP2 (Applicant): Now, Dutch criminal law knows this concept in theory.
AP2 (Applicant): But in practice, however, it has never been accepted by the Dutch Supreme Court as a justification of a fatal incident.
AP2 (Applicant): Putative and excessive self-defense means two things.
AP2 (Applicant): First, that the use of force was excessive.
AP2 (Applicant): And second, that it was prompted by a wrongful belief that there was a threat.
AP2 (Applicant): In other words, when the Dutch prosecutor qualified the shooting as putative and excessive self-defense, he recognized as well that the use of force was unnecessary.
AP2 (Applicant): And I add to it that the unnecessary use of violence is by definition outside the rules of engagement.
AP2 (Applicant): Yet the prosecutor single-handedly decided that there was enough justification for the act.
AP2 (Applicant): And he decided not to prosecute.
AP2 (Applicant): I submit that for the prosecutor to make such a decision on his own is quite far-reaching.
AP2 (Applicant): The Dutch appeals court could only marginally review this decision.
AP2 (Applicant): It did so in the context of an Article 12 procedure.
AP2 (Applicant): Now, the Article 12 procedure is a regular procedure in the Netherlands used to trigger a criminal investigation.
AP2 (Applicant): It entails a marginal review of the prosecutor's decision not to prosecute.
AP2 (Applicant): The Dutch appeal court accepted without much question the prosecutor's view that Lieutenant A had acted in mistakenly.
AP2 (Applicant): He had acted in mistaken self-defense.
AP2 (Applicant): Now, the appeals court made this decision on the basis of a deficient investigation.
AP2 (Applicant): An investigation, we submit, that by no means met the standard of Article 2.
AP2 (Applicant): Please allow me to explain this a bit further.
AP2 (Applicant): It's undisputed that Lieutenant A was the only Dutch soldier who fired.
AP2 (Applicant): Now, it's also undisputed that no shots were fired from the car.
AP2 (Applicant): Indeed, no weapons were found in the car.
AP2 (Applicant): However, Lieutenant A claimed that he believed he was under fire.
AP2 (Applicant): And therefore, he responded in self-defense.
AP2 (Applicant): So, the question is, in addition to Lieutenant A, could anyone else have fired?
AP2 (Applicant): Is it probable that someone else fired and indeed fired first?
AP2 (Applicant): The checkpoint was manned not only by Dutch military, but also by the ICDC, the Iraqi Civil Defense Corps.
AP2 (Applicant): As we've seen, the ICDC was established by the Coalition Provisional Authority, the CPA.
AP2 (Applicant): Lieutenant A supervised the ICDC.
AP2 (Applicant): Now, the government have always assumed and only assumed that the Iraqi officers fired and that they fired first.
AP2 (Applicant): And it's on the basis of this presumption that Lieutenant A legitimately returned fire, so the government argues.
AP2 (Applicant): He acted in mistaken self-defense.
AP2 (Applicant): And so, he should not be considered a suspect and no criminal prosecution should be initiated.
AP2 (Applicant): The appeals court judgment in the Article 12 procedure was built on the very same assumption.
AP2 (Applicant): And I quote from the ruling of the appeals court, based on the investigation, the appeals court finds that the Mercedes in which Mr. Jalut was a passenger
AP2 (Applicant): was first fired upon by the ICDC.
AP2 (Applicant): End of quote.
AP2 (Applicant): Mr. President, the appeal court does not explain
AP2 (Applicant): how the investigation supported this finding.
AP2 (Applicant): And so, the crucial question is, does the investigation indeed warrant this conclusion?
AP2 (Applicant): Was the investigation effective in the sense that it could lead to the determination that the force used by Lieutenant A was indeed justified in the circumstances?
AP2 (Applicant): We submit that it was not.
AP2 (Applicant): I'll explain this a bit further.
AP2 (Applicant): The investigation consists of a few things, witness statements, the autopsy, and the examinations of the victim's car.
AP2 (Applicant): Now, when we look at the witness statements, it were only the ducts, Sergeant Tonison and Soldier Quist that claimed that they heard shooting, and I quote them, from the direction of the VCP, the vehicle checkpoint.
AP2 (Applicant): They did not say that the Iraqi officers fired.
AP2 (Applicant): They merely said that they heard shooting from the direction of the checkpoint.
AP2 (Applicant): No one else confirmed their statements.
AP2 (Applicant): Other evidence does not support the statements of the Dutch soldiers either.
AP2 (Applicant): Rather, in my view, it points in the opposite direction.
AP2 (Applicant): The driver of the car, for example, Mr. Khadem,
AP2 (Applicant): declared that his vehicle was shot at by Dutch soldiers only.
AP2 (Applicant): A significant detail is that he claims that he had been asked by the interpreter of the Dutch military to say that the Iraqis had fired and not the Dutch.
AP2 (Applicant): Apparently, the Dutch military have tried to pressure him in not saying the truth.
AP2 (Applicant): The file also contains a letter sent by the Iraqi Civil Defense Corps, the ICDC headquarters, to the Dutch military.
AP2 (Applicant): It was sent one day after the shooting incident.
AP2 (Applicant): In the original English version, it reads, and I quote, he, that is the driver of the vehicle, was carelessness and the ICDC soldiers shouting on him and calling to stop.
AP2 (Applicant): Now, tellingly, in the Dutch translation, we see that shouting has been changed into shooting.
AP2 (Applicant): And it was this wrong translation that was then copied in all the reports of the Dutch constabulary investigating the case, giving the wrongful impression that the ICDC had acknowledged that it had fired at the vehicle.
AP2 (Applicant): In the case file, we also find an autopsy report.
AP2 (Applicant): As we know, it has only been available in Arabic.
AP2 (Applicant): Also, we know that the Dutch police choose not to perform its own autopsy, but instead left it to the Iraqis.
AP2 (Applicant): The Dutch were not even present when the autopsy was performed.
AP2 (Applicant): As recent as only one month ago, the government provided a Dutch translation of the autopsy report.
AP2 (Applicant): I've asked so many times for a translation, but now one month ago, we finally received it.
AP2 (Applicant): What we also find in the file is an investigation of the metal pieces that were retrieved from the victim's body, also only recorded in Arabic.
AP2 (Applicant): Mr. President, clearly, those reports
AP2 (Applicant): could not be taken into account by the prosecutor when it took its decision that Lieutenant A acted in mistaken self-defense, as our prosecutor does not read Arabic.
AP2 (Applicant): Finally, the inspection of the car.
AP2 (Applicant): It does not allow for the government's contention that Iraqis fired first either.
AP2 (Applicant): A provisional, and that's a quote from the file, a provisional conclusion was drawn that the car was fired upon by more than one person.
AP2 (Applicant): But significant issues were left unanswered, such as was all the damage to the car caused in one and the same shooting incident, the position of the gunman could not be determined by the police, and the remnants of ammunition that were found in the car, notably on the chair of Mr. Jalut, were left unexamined.
AP2 (Applicant): They were secured.
AP2 (Applicant): They were sent to the prosecutor, but they were not examined.
AP2 (Applicant): Now, having looked at all these facts and circumstances, there's very little that can support a suggestion that the ICDC fired first before Lieutenant A or even that they fired at all.
AP2 (Applicant): The government's contention that Lieutenant A returned fire to defend himself really cannot be reconciled with the file.
AP2 (Applicant): Now, evidence of quite some significance emerged recently.
AP2 (Applicant): In the second round of written submissions before your court, the government suddenly produced the statements of all the ICDC members.
AP2 (Applicant): Up until then, and it's an important point, up until then, the file had only contained the statement of the commander of the ICDC, Sergeant Hussam S.
AP2 (Applicant): He does not mention firing by his staff, but his staff had also been interviewed themselves at the time.
AP2 (Applicant): These statements were never included in the file that was presented to us.
AP2 (Applicant): The criminal file merely reads, and I quote, that these interviews yielded no relevant information regarding the investigation, end of quote, a conclusion that the appeals court accepted at face value.
AP2 (Applicant): We asked for the ICDC statements over and over again, but to no avail.
AP2 (Applicant): Why the government has chosen to produce these statements only now, we fail to understand.
AP2 (Applicant): The government writes that they found the statements in the police file, but that means that the prosecutor must have been aware of them as well.
AP2 (Applicant): The significance of these statements cannot have gone unnoticed to them.
AP2 (Applicant): None of the Iraqi officers confirm the government's claim that they fired first when the car with Mr. Jalut passed.
AP2 (Applicant): Some say so explicitly.
AP2 (Applicant): Others say implicitly.
AP2 (Applicant): Some of them say that they fired during an unrelated shooting which occurred earlier that night.
AP2 (Applicant): But none of them say that they fired at Jalut's car, let alone that they fired first.
AP2 (Applicant): And yet the government deliberately chose to exclude these statements.
AP2 (Applicant): It enabled the government to pass the buck to the Iraqis.
AP2 (Applicant): Mr. President, the suggestion that Lieutenant A responded
AP2 (Applicant): to ICDC fire and thus acted in mistaken self-defense simply does not follow from the records.
AP2 (Applicant): The fact that the investigation started from this presumption, and indeed, we find it in every record of the Khmer, the presumption was leading throughout the entire investigation is a serious shortcoming.
AP2 (Applicant): In the case of Romsa Hai versus the Netherlands, the court has ruled that any deficiency in investigation which undermines its ability to identify the perpetrator will risk falling foul of the standard in Article 2.
AP2 (Applicant): We submit that leaving out the statements of the ICDC is, among other things, such a deficiency.
AP2 (Applicant): It has seriously affected the appeals court's ability to assess who should be held accountable for the victim's death.
AP2 (Applicant): We're even prepared to go one step further and claim that the Dutch appeal court has been misinformed.
AP2 (Applicant): We seriously doubt that this court had issued the same ruling if it had been fully informed by the prosecutor.
AP2 (Applicant): Finally, I would like to draw your attention to one and other important shortcoming, and that concerns the failure to involve the applicants.
AP2 (Applicant): After the killing of his son, the applicants immediately went to the Dutch base.
AP2 (Applicant): There, he declared his wish for prosecution.
AP2 (Applicant): I quote the father of Mr. Jalut, the applicant.
AP2 (Applicant): He said, I consulted the command of the Dutch troops in the region, Al-Mutana, on several occasions, but did not achieve a single result.
AP2 (Applicant): They talked to me one time at the entrance of the camp through an Iraqi translator and told me that they would contact me.
AP2 (Applicant): But since the day of the accident until today, they have not contacted me a single time.
AP2 (Applicant): End of quote, the applicant.
AP2 (Applicant): The government were well aware of the fact that the victim had a family, and a family that was understandably quite keen to learn about the developments.
AP2 (Applicant): Nevertheless, the government made never an attempt to contact them.
AP2 (Applicant): The decision not to prosecute was taken on 29 July 2004, roughly one and a half months after the incident.
AP2 (Applicant): Yet nobody bothered to inform the applicant of this.
AP2 (Applicant): Only after the applicant initiated a procedure under Article 12, the government first contacted him through his counsel.
AP2 (Applicant): And that was three years after the death of his son.
AP2 (Applicant): The failure to provide the applicant with any information is another violation of Article 2 of the convention we submit.
AP2 (Applicant): I come to a conclusion.
AP2 (Applicant): it was the Netherlands that participated in the occupation of Iraq.
AP2 (Applicant): It was the Netherlands that was essentially the only military force in Al-Mutana, independent of the United Kingdom.
AP2 (Applicant): It were Netherlands soldiers that erected vehicle checkpoints, arrested and detained people, and at times used force.
AP2 (Applicant): When a Dutch soldier killed Mr. Jalut,
AP2 (Applicant): it was against the Netherlands that investigated the case.
AP2 (Applicant): It was the Netherlands that decided that Lieutenant A had legitimately responded in self-defense.
AP2 (Applicant): This undisputable exercise of public powers at all levels must lead to the inevitable conclusion that the deficiencies of the investigation are then also the responsibility of the Netherlands.
AP2 (Applicant): I thank you for your attention.
Dean Spielmann (JudgeP): Thank you, Ms. Zegveld.
Dean Spielmann (JudgeP): Mr. Eadie.
TP1 (ThirdParty): Mr. President, Members of the Court, the United Kingdom is very grateful for the opportunity
TP1 (ThirdParty): to address you on issues of principle raised by this case. I intend to restrict my submissions
TP1 (ThirdParty): to submissions about the issue of jurisdiction.
TP1 (ThirdParty): The basic approach to the principle of jurisdiction in Article 1 is clear and well established by this Court's case law. We emphasise four features. Firstly, Article 1 jurisdiction
TP1 (ThirdParty): is primarily or essentially territorial, with the consequence that extra-territorial jurisdiction is exceptional. That has been repeatedly acknowledged by the Grand Chamber. The requirement of exceptionality
TP1 (ThirdParty): sets, we submit, a high threshold. It means that most acts of contracting states performed
TP1 (ThirdParty): outside their territories do not constitute an exercise of jurisdiction by them within the meaning of Article 1.
TP1 (ThirdParty): The second feature flows from the first. There must be very powerful reason, we submit, for
TP1 (ThirdParty): concluding that an existing exception should be applied to new circumstances, and no good reason not to. Adopting the language of the Grand Chamber, a determination that exceptional
TP1 (ThirdParty): circumstances exist, such as to justify a finding by the Court that the state was exercising jurisdiction extra-territorially, requires special justification.
TP1 (ThirdParty): Third, the need for a tight containment of these exceptional situations is given added emphasis because, as properly recognised by the Grand Chamber in Bankovic and nowhere subsequently questioned in the Court's jurisprudence, the living instrument metaphor does not apply to jurisdiction. That principle, we submit, must be given full force. The concept of jurisdiction
TP1 (ThirdParty): under Article 1 is not one which the Court can expand incrementally from case to case.
TP1 (ThirdParty): Nor should the principle of exceptionality be used simply as a device or a mechanism towards an ever-expanding notion of jurisdiction.
TP1 (ThirdParty): Fourth, jurisdiction is not a doctrine of effects. The cause-and-effect notion of jurisdiction
TP1 (ThirdParty): has rightly and squarely been rejected by the Grand Chamber, notably in the Bankovic case.
TP1 (ThirdParty): The applicant in this case contends that exceptional extra-territorial jurisdiction is established.
TP1 (ThirdParty): Its three claimed bases are, first, the exercise of public powers by State agents abroad, secondly, the use of force by State agents abroad, and thirdly, effective control of an area.
TP1 (ThirdParty): As to the exercise of public powers, in Al-Skhaini the Grand Chamber considered that the UK had jurisdiction because of a combination of two circumstances in the highly unusual situation in Iraq. First, at the relevant time, the UK had assumed full authority and responsibility
TP1 (ThirdParty): as an occupying power for the exercise of a public power which would ordinarily have been exercised by the government of Iraq. And secondly, the deaths of the applicant's
TP1 (ThirdParty): relatives in the Al-Skhaini case occurred in the course of those security operations by British forces exercising that assumed public power.
TP1 (ThirdParty): The principle we submit cannot and does not extend to any and all military activities conducted abroad by a contracting State. That will be to part company entirely from any
TP1 (ThirdParty): of the recognised legal bases for jurisdiction. The specific and tightly confined principle
TP1 (ThirdParty): in cases like Drodds and Janusek would be stretched beyond breaking point to a place that cannot conceivably have been contemplated by the framers of the Convention. Any semblance
TP1 (ThirdParty): of extra-territorial jurisdiction being exceptional would have been left well behind. It would
TP1 (ThirdParty): be replaced by an unprincipled and expansive basis on a broad principle that in effect all military operations anywhere in the world are covered by the concept of jurisdiction.
TP1 (ThirdParty): And that would be to go directly against the principles laid down by the ground chamber in Bankovic, amongst other cases. And there is a real need, we submit, and a justification
TP1 (ThirdParty): in principle for a tight containment of the concept of jurisdiction by reference to the exercise of public powers.
TP1 (ThirdParty): The importance of the United Nations mission to secure international peace and security can hardly be overstated. As the 17 respondents' states to the Bankovic case explained, and
TP1 (ThirdParty): as the ground chamber itself noted at paragraph 149 of the Barami and Saramati case, UN missions depend upon support from Member States, and bringing such missions within the jurisdictional reach of the Convention risks at least both deterring such support and participation, and jeopardising the effectiveness of such critical missions.
TP1 (ThirdParty): The Netherlands was not in an analogous position to the UK in Al-Skhaini. The special exceptional
TP1 (ThirdParty): – I use the word – combination of features that underpin the Court's conclusions simply do not apply. There are critical points of distinction rather than mere difference. The
TP1 (ThirdParty): Netherlands was not at any stage an occupying power within the meaning of Article 42 of the Hague Regulations. And that is a key point of distinction based on the status of the
TP1 (ThirdParty): UK as an occupying power. That is not to be dismissed as some strange feature creating,
TP1 (ThirdParty): as Mr Eichelboom put it, a legal vacuum. It is a key point of legal distinction based
TP1 (ThirdParty): upon the special status accorded to occupying powers squarely recognised in international law and international humanitarian law in particular, reflecting the particular degree of control that an occupying power exercises over the territory which they occupy.
TP1 (ThirdParty): The express recognition in the United Nations Security Council resolutions that assisting States such as the Netherlands were not occupying powers, we submit, establishes the true legal position beyond question. And the Netherlands cannot properly be regarded, by reason of
TP1 (ThirdParty): the contribution it made, as having had any part in the role of governing Iraq. It did
TP1 (ThirdParty): not create or become part of the Coalition Provisional Authority, nor did it have command over any region of Iraq.
TP1 (ThirdParty): The applicant contends, secondly, that the case falls within a use of force by State agents exception to the principle of territorial jurisdiction. We respectfully disagree. The
TP1 (ThirdParty): State agent authority basis of jurisdiction is characterised by a State agent exercising exclusive physical power, control and legal authority, actual or purported, over individuals.
TP1 (ThirdParty): As the Grand Chamber explained in Al-Skaini at paragraph 136, this principle has been applied where an individual is taken into the custody of State agents abroad. And it
TP1 (ThirdParty): is notable that each of the cases referred to by the Court as illustrative of the exercise of physical power and control did in fact involve either detention or capture of individuals by the State authorities. See paragraph 136 of Al-Skaini again.
TP1 (ThirdParty): The act of shooting at a moving vehicle occupied by people who are not detained is not an exercise of physical power and control of this type. The only connection is the act of shooting,
TP1 (ThirdParty): and that, we respectfully submit, is in principle no different from the connection created by the bombing of the television station in Belgrade, specifically considered by the Grand Chamber in Bankovic. The notion that jurisdiction can be founded simply through a State's
TP1 (ThirdParty): jurisdiction, having effect extraterritorially, was expressly and emphatically rejected there, and it must for the same reasons be rejected here in relation to this asserted basis of jurisdiction. Bankovic is a complete answer, we submit, to this Head of Jurisdiction.
TP1 (ThirdParty): And Al-Skaini provides no support for the applicant's case under this Head. It did
TP1 (ThirdParty): not overrule or disagree with Bankovic. It would have had to have done so for this Head
TP1 (ThirdParty): to be established here. Al-Skaini did of course involve incidents in which individuals had
TP1 (ThirdParty): been shot by, or allegedly by, British soldiers, but the Court did not find jurisdiction on that basis alone. On the contrary, it was the combination of features that I identified
TP1 (ThirdParty): earlier that led to that finding in that case, specifically based upon the UK being an occupying power and exercising the powers that that status conferred.
TP1 (ThirdParty): Finally in this respect, we note that the relationship between Dutch service personnel and the Netherlands has been focused on in the Court's questions. Our submission on
TP1 (ThirdParty): that relationship is that it does no more than to show that service personnel are State agents, a point which is obviously not in dispute. That is to direct the focus, we submit,
TP1 (ThirdParty): to the wrong place and indeed onto the wrong relationship. To identify whether this case
TP1 (ThirdParty): falls within this second exception, the Court's focus should be on the relationship between the State agent and the victim of the alleged violation. Was the alleged victim under the
TP1 (ThirdParty): exclusive physical power, control and authority of the State agent? In the case of a shooting
TP1 (ThirdParty): of this kind, the answer to that question is clearly not.
TP1 (ThirdParty): Finally, and I don't know whether this is still being proceeded with, but if it is I shall deal with it very briefly, the third basis of jurisdiction asserted is the effective control of an area exception. My submission of principle in relation to that is that that
TP1 (ThirdParty): exception is a very particular and narrow exception. In Al-Skhaini, the Grand Chamber
TP1 (ThirdParty): noted the consequence of this exception applying. If a State exercises effective control over
TP1 (ThirdParty): an area for this purpose, it has to secure, said the Grand Chamber in Al-Skhaini, within that area the entire range of substantive convention rights. It follows that the circumstances