TrustHLT/LaCour huggingface dataset:
TP1 (ThirdParty): IHL imposes a number of other specific duties in relation to the dead and missing persons.
TP1 (ThirdParty): It's to be noted specifically that the right of families to know the fate of their relatives in article 32 of additional protocol one is in relation to those specific obligations, as the 1987 commentary makes clear.
TP1 (ThirdParty): There is no basis for the contention by Rights Watch of paragraph 33 that this provision can form the basis for a human rights type general duty to investigation.
TP1 (ThirdParty): Third, the IHL position in relation to investigations of commanders and military police is important.
TP1 (ThirdParty): IHL assigns a specific role to commanders in the conduct of investigations.
TP1 (ThirdParty): And the rationale for this role is that in circumstances where no other authority is present, it's the duty of commanders to act like an investigating magistrate, as in the 1977 ICRC commentary.
TP1 (ThirdParty): If the procedural obligations in article two were to be interpreted so as to require the exclusion from investigation of military commanders, the lex specialis obligations under IHL as regards the specific investigative duties of commanders would be disavowed.
TP1 (ThirdParty): Additionally, the fact that those investigating such as military police may be integrated into the chain of operational command and thus come under the overall command of a mission cannot be considered to be a breach of standards of independence and effectiveness.
TP1 (ThirdParty): The practical reality on the ground is that there must be a clear line of authority and command for all personnel part of a deployment.
TP1 (ThirdParty): But that does not mean that those investigating will follow the orders of those and instructions of those entrusted with operational command.
TP1 (ThirdParty): And any assessment of independence must consider the practical conditions of deployment.
TP1 (ThirdParty): And finally, in assessing the adequacy of the evidence gathering in an investigation, what is legally and practically feasible in the context of an armed conflict must be a paramount consideration.
TP1 (ThirdParty): And there is, we suggest, real force in the submissions of Professor Krieger this morning on the limitations, legal and practical, that existed in relation to investigations in the context of Afghanistan.
TP1 (ThirdParty): So in relation to the Article 2 procedural obligation, we submit that IHL occupies the field and regulates comprehensively.
TP1 (ThirdParty): It is no part of that IHL regulation to create some sort of general duty to investigate.
TP1 (ThirdParty): The investigative obligations under IHL are not consistent with some general obligation to investigate under Article 2 in this special context.
TP1 (ThirdParty): IHL acknowledges deliberately no such obligation, nor are they consistent with the Article 2 procedural rules more generally, developed as they were in the context of peace and ordinary law enforcement.
TP1 (ThirdParty): And it is for all of those reasons that IHL is, and should, we respectfully submit, be treated by this court as being the lex specialis.
Linos-Alexandre Sicilianos (JudgeP): I now call Mr. Wordsworth.
Linos-Alexandre Sicilianos (JudgeP): Yes, please.
TP2 (ThirdParty): Mr President, members of the court, Rights Watch UK will be focusing in these oral submissions solely on the question of when an individual may come within a state's jurisdiction under Article 1 due to that state's exercise of physical power and control. I refer the court to our written
TP2 (ThirdParty): comments for the other matters on which Rights Watch UK has also intervened, including the importance of the right to truth in considering the adequacies of remedies for human rights violations.
TP2 (ThirdParty): As to Article 1, this case brings into sharp focus the question of what the court considers to be required when there is an exercise of physical power and control. To borrow the words of Mr
TP2 (ThirdParty): Justice Leggott in the English High Court in the Al-Sadun case to formulate a key question, can a principled system of human rights law draw a distinction between 1. killing an individual
TP2 (ThirdParty): after arresting him and 2. simply shooting him without arresting him first, such that in the
TP2 (ThirdParty): first case there is an obligation to respect the person's right to life, yet in the second there is not? He stated in terms that no such distinction could be drawn. The English Court of Appeal,
TP2 (ThirdParty): thought it would be for this court to say that there is no distinction, but it was clearly troubled by the force of the judge's reasoning, which it expressly acknowledged. Indeed, it might
TP2 (ThirdParty): appear counterproductive to any system of human rights protection for rights to be engaged where there is detention, but not use of lethal force alone, such that accountability could have been avoided in a case like Issa if the victims had been shot by the soldiers right away, as opposed to detaining them first. This critical issue now comes before you in the form of an airstrike,
TP2 (ThirdParty): with troops on the ground, as opposed to a bullet, and it's been strongly suggested to the court that Bankovic provides the answer. And even so far as concerns certain of the intervening
TP2 (ThirdParty): states, that the important statements of principle in Al-Skaini should be applied restrictively and by reference to Bankovic, almost as if they had never been made, and that suggestion should be rejected. The principles for identifying where a potential victim is within
TP2 (ThirdParty): the jurisdiction of the contracting parties were formulated in Al-Skaini with evident care, taking account of all the preceding jurisprudence of the court, and that is no doubt why those principles have been reiterated in full in cases like Jaloud and Hassan, as well as repeated in multiple domestic cases. And critically, the identification in Al-Skaini that in certain
TP2 (ThirdParty): circumstances the use of force by a state's agents operating outside its territory may bring the individual, thereby brought under the control of the state's authorities, into the state's Article 1 jurisdiction, reflects not only the court's past jurisprudence, but also the ordinary meaning of the term jurisdiction within Article 1, as interpreted according to the usual rules. And
TP2 (ThirdParty): while the court in Bankovic focused on the extent of a state's jurisdiction in international law, and unsurprisingly so, this was nonetheless a focus on where a state is generally permitted to exercise jurisdiction extraterritorially. So that could not provide, and presumably was not
TP2 (ThirdParty): intended to provide, the court with a definitive list of the instances where a state does in fact assert its jurisdiction over an individual outside its territory, such that the state can be expected and intended, through Article 1, to protect the human rights of the individual in compliance with its ECHR obligations. Of course, as the court very well knows, it was said in Bankovic that
TP2 (ThirdParty): jurisdiction under Article 1 is essentially territorial in nature, and that extraterritorial jurisdiction is exceptional. But that is an apt reflection of reality. The state does, on a day-to-day
TP2 (ThirdParty): basis and as a matter of fact, exercise jurisdiction over those within its territory, and assertions of jurisdiction abroad are indeed the exception, and not the rule. But that does not mean that an
TP2 (ThirdParty): assertion of jurisdiction outside the state's territory is somehow conceptually different in nature to an assertion within the territory. According to the UK Supreme Court in the Susan
TP2 (ThirdParty): Smith case, the word exceptional is there in Bankovic not to set an especially high threshold for circumstances to cross before they can justify a finding that the state was exercising jurisdiction extraterritorially. It is there to make it clear that for this purpose the normal presumption
TP2 (ThirdParty): that applies throughout the state's territory does not apply. And this appears correct, and as
TP2 (ThirdParty): Al-Skaini identifies, all depends on the particular facts. Against that backdrop, I wish to make five
TP2 (ThirdParty): brief points. First, the court is now concerned only with whether control and authority has been
TP2 (ThirdParty): asserted so as to engage the right to life. That follows from the important statement in Al-Skaini
TP2 (ThirdParty): that the state's only obligation under Section 1 of the Convention is to secure to the individual the rights that are relevant to his or her situation. Second, Al-Skaini and the court's
TP2 (ThirdParty): subsequent cases do suggest that it is not all cases involving physical power and control that are correctly regarded as falling within a state's jurisdiction. In Jaloud and Pisari, for example,
TP2 (ThirdParty): the court focused on the assertion of authority and control through the operation of the checkpoint.
TP2 (ThirdParty): Whilst Hassan was, of course, a detention case, plainly the court continues to reject a cause-and-effect notion of jurisdiction, and Rights Watch would respectfully suggest that it is correct to do so, as otherwise the term jurisdiction within Article 1 risks being deprived of meaning.
TP2 (ThirdParty): Third, in identifying where, in the context of the right to life, an exercise of physical power and control may constitute an assertion of jurisdiction, the Human Rights Committee's General Comment 36 may provide a useful tool. This defines those subject to a state's jurisdiction with respect to
TP2 (ThirdParty): the right to life as all persons over whose enjoyment of the right to life it exercises power or effective control, which includes persons located outside any territory effectively controlled by the state, whose right to life is nonetheless impacted by its military or other activities in a direct and reasonably foreseeable manner. As we identify in our written comments,
TP2 (ThirdParty): the International Court of Justice has accorded great weight to General Comments of the Human Rights Committee. It is notable that of the 173 state parties to the ICCPR, we understand that
TP2 (ThirdParty): only seven commented on this interpretation as to jurisdiction. Germany did comment,
TP2 (ThirdParty): stating that the mere fact that a military or other activity abroad has an impact on persons abroad would not automatically suffice to establish its jurisdiction over the person concerned.
TP2 (ThirdParty): That must be correct and is also consistent with this court's jurisprudence, but that is not what General Comment 36 suggests. This leads me to our fourth point, which is that the various statements
TP2 (ThirdParty): on a functional approach to jurisdiction, including General Comment 36, contain important limitations that go to identify whether an individual is indeed within a state's jurisdiction. In General
TP2 (ThirdParty): Comment 36, the impact to the right to life must be direct and reasonably foreseeable.
TP2 (ThirdParty): In any given context, this will require a close inspection of the facts and any legal duties, incumbent on the state, that will give more specific content in terms of identifying what should be taken as reasonably foreseeable. In the context of an armed conflict, the appropriate
TP2 (ThirdParty): reference point is IHL and the protections that apply for civilians in the context of targeting a military object. Indeed, Article 1 must of course anyway be interpreted taking into account
TP2 (ThirdParty): relevant rules of international law, which includes IHL. As to the relevant rules of IHL,
TP2 (ThirdParty): as follows from Article 57 of Additional Protocol 1 to the 1949 Geneva Conventions, which reflects customary international law, and indeed as is reflected in this court's own jurisprudence in cases like Issa Yeva, those who plan or decide an attack must take all feasible precautions in the choice of means and methods of attack, with a view to avoiding and in any event to minimizing incidental loss of civilian life. They must also refrain from deciding to launch any attack which
TP2 (ThirdParty): may be expected to cause incidental loss of civilian life, which would be excessive in relation to the concrete and direct military advantage anticipated. The rule on proportionality in
TP2 (ThirdParty): Article 51 of AP1 is cast in similar terms and is again reflective of customary international law.
TP2 (ThirdParty): Moreover, in ratifying AP1, Germany declared its understanding that the word feasible, used in Article 57, means that which is practicable or practically possible, taking into account all circumstances ruling at the time, including humanitarian and military considerations.
TP2 (ThirdParty): As follows from these basic rules, and as is explained further by the ICRC legal advisors, Robinson and Nola in their 2016 paper, an assessment of the expected incidental damage arising from an attack is therefore required, including as to what is reasonably foreseeable. And Germany
TP2 (ThirdParty): considers itself obliged to do all that is practicable or practically possible, taking into account all the circumstances when it comes to taking all feasible precautions, which of itself indicates that a state's assessment of the risk of affecting the right to life of civilians is, or should be, routine. Thus, in this context, and consistent with this Court's past cases,
TP2 (ThirdParty): it would be incorrect to focus on the airstrike alone as an instantaneous act, but it is necessary to look at all the circumstances to identify whether there was an exercise of state agent authority. That is, one, the German presence on the ground in Kunduz as part of the security
TP2 (ThirdParty): function accepted by ISAF, which alone shows that this is not a Bankovic case. Two, the specific
TP2 (ThirdParty): obligations of the German commander with respect to civilians. Three, his exercise of those
TP2 (ThirdParty): obligations, defective or otherwise. Four, the command given. And only then, five, the actual
TP2 (ThirdParty): airstrike. This is very different to a cause and effect notion of jurisdiction, and fairly reflects
TP2 (ThirdParty): the different stages at which not just physical power and control, but also authority may be being exercised. Thus, in Jaloud, the checkpoint that formed part of the factual matrix was physical.
TP2 (ThirdParty): In this case, the respondent state was also engaged in a form of filter process to ensure the protection and security of civilians, and that may correctly be seen as a form of asserting authority and control. Related to this, our fifth and final point is that it appears a
TP2 (ThirdParty): questionable assistance to say that under IHL, the juridical relationship with an adversary during hostilities is one that simply cannot be assimilated to an exercise of jurisdiction or authority.
TP2 (ThirdParty): As that is to fail to identify that in this case, the relevant juridical relationship under IHL concerns how IHL protects civilians, not the adversary. And that focus is squarely relevant
TP2 (ThirdParty): for the purposes of extraterritorial jurisdiction. It also appears to give insufficient weight to
TP2 (ThirdParty): the jurisprudence of this court in Hassan, which in turn referred to the well-known jurisprudence of the ICJ on the application of both IHL and human rights obligations in the context of armed conflict. Thank you very much Mr President, members of the court.
Linos-Alexandre Sicilianos (JudgeP): Vice President Spano, please.
Robert Spano (Judge): I have two questions, one which I would like to direct to the government and the third party governmental intervenors, but of course the applicants and the Rights UK could give an answer as well.
Robert Spano (Judge): And then I would have one question for the applicants.
Robert Spano (Judge): My first question to the government is, I would preface it with the following.
Robert Spano (Judge): This complaint before us is limited to an allegation of a violation of the procedural limb of Article II.
Robert Spano (Judge): So the conduct that is being challenged is the investigation by Germany.
Robert Spano (Judge): We are not being asked to take a position on Germany's negative potential violation of Article II.
Robert Spano (Judge): The preface is important because my question is this.
Robert Spano (Judge): Assuming for the sake of argument that we would agree with the government that this is a Behrami and Saramati case.
Robert Spano (Judge): So the operational conduct of Germany, the actual strike would be attributable to the UN putting aside the debate between Sir James and Professor Akande on whether it's effective control or ultimate authority.
Robert Spano (Judge): We would stipulate that that would be the case, but the conduct we are asked to examine is not the strike.
Robert Spano (Judge): It is the investigation.
Robert Spano (Judge): So my question is this, is it the argument of the government that then attributability would not only relate to the operation itself, but the conduct of the investigation would also be attributable, would also fall under attributability.
Robert Spano (Judge): And the reason I ask this is, and I want to direct because it was not mentioned by the parties this morning, Article III of the status of the international security, the status of ISAF, which states, and I quote, "the ISAF and supporting personnel, including associated liaison personnel, will under all circumstances and at all times be subject to the exclusive jurisdiction of the respective national elements in respect of any criminal or disciplinary offenses which may be committed by them on the territory of Afghanistan".
Robert Spano (Judge): May I ask you to comment under your jurisdictional ratione personae on the relevance, potential relevance for our assessment as regards to SOFA agreement.
Robert Spano (Judge): And my second limb to that is also as regards jurisdiction ratione loci.
Robert Spano (Judge): The argument is made that even assuming we also agree that Gusulierto doesn't apply ipso facto to an extraterritorial military theater, could you comment on whether this provision, which I just mentioned, why it would not constitute a special feature within the meaning of the Gusulierto line of case law, allowing for the acceptance of a jurisdictional link in this case.
Robert Spano (Judge): My question to the applicants is the following.
Robert Spano (Judge): Professor Akande made clear, as I understand, you correct me if I'm wrong, that this case is very similar to Al-Skaini.
Robert Spano (Judge): You have a security theater.
Robert Spano (Judge): May I then ask you to comment on the arguments in paragraph 40 to 43 of the German, the observations of the German government, which attempts to make a distinction between the fall of the Ba'ath regime in Iraq and the difference here, which is that Afghanistan retained itself the main competences when it came to security operations and the ISAF was merely lending support.
Robert Spano (Judge): And according to the German government, that is a crucial distinction which would distinguish this case from Al-Skaini.
Linos-Alexandre Sicilianos (JudgeP): Thank you very much, Judge Keller
Helen Keller (Judge): Thank you, Mr. President.
Helen Keller (Judge): My question goes primarily to the government.
Helen Keller (Judge): And I want to define a little bit more in detail the scope of the case, and in particular, the scope of the procedural obligation.
Helen Keller (Judge): If I understood the government's position correctly, you argue that you were not allowed to investigate in Afghanistan.
Helen Keller (Judge): On the other hand, the applicant's side argues that Germany failed to examine certain issues in Afghanistan.
Helen Keller (Judge): Now, we know that in Afghanistan, certain procedures were dealt with, in particular by ISAF, in particular by local authorities and by the UN.
Helen Keller (Judge): Now, my question is, what of those results, independently whether it came from Afghan authorities, ISAF authorities, or the UN, did the German authorities take into account when assessing the case?
Helen Keller (Judge): And were there certain reports or results coming from Afghanistan which you did deliberately not take into account?
Linos-Alexandre Sicilianos (JudgeP): Yes, the national judge, Seibert-Fohr
Anja Seibert-Fohr (Judge): I have two questions, one for the representative of the government and one for the applicant.
Anja Seibert-Fohr (Judge): My first question, which is also perhaps relevant to the intervening governments, is about the relationship between human rights law and international humanitarian law.
Anja Seibert-Fohr (Judge): If I read your written observations correctly, in paragraph 83, the government is pointing out that, I quote, "international humanitarian law also provides the appropriate yardstick here", end of quote.
Anja Seibert-Fohr (Judge): I'm asking myself, what exactly are you referring to in terms of the yardstick?
Anja Seibert-Fohr (Judge): I take it that the government is not claiming any kind of derogation over here.
Anja Seibert-Fohr (Judge): But perhaps the government could clarify, what exactly are the standards under international humanitarian law in terms of how a government has to investigate violations of IHL?
Anja Seibert-Fohr (Judge): Are there any norms?
Anja Seibert-Fohr (Judge): Because I'm missing any kind of information on that so far.
Anja Seibert-Fohr (Judge): Now I turn to the applicant with another question.
Anja Seibert-Fohr (Judge): This relates to the failure to investigate.
Anja Seibert-Fohr (Judge): The council has repeated the argument today that the applicant was not involved in the investigation and that there was no kind of direct contact to any of the next of king of the victims.
Anja Seibert-Fohr (Judge): So my question is as follows.
Anja Seibert-Fohr (Judge): What information could the applicant or the next of king or villagers around the region could have provided the state authorities with, which would be significant and relevant in order to determine whether the incidental loss of civilian life could have been anticipated by the colonel who ordered the bombing?
Anja Seibert-Fohr (Judge): That's my question.
Linos-Alexandre Sicilianos (JudgeP): Judge Lemmens, please.
Paul Lemmens (Judge): I have a question, I think, primarily for the government, but the applicant can also reply to that question.
Paul Lemmens (Judge): It's about the scope of the investigation in Germany in relationship to the applicable German law, German criminal law.
Paul Lemmens (Judge): I understand that the relevant provision of the Code of Crimes Against International Law provides that there is no criminal liability if the accused was not aware of the presence of civilians.
Paul Lemmens (Judge): That's a subjective element, and that has also been stressed by the parties.
Paul Lemmens (Judge): Now, does this exclude holding a person criminally liable for objective reasons, negligence, lack of precautions, disproportionate use of force?
Paul Lemmens (Judge): Is that something that would have to be examined under the criminal code?
Paul Lemmens (Judge): And my question then is, the real question is, would an investigation into the sole subjective element about the awareness of the presence of civilians, would an investigation limited to that in any event be sufficient under German law and also under the applicable rules of the Convention and perhaps also of international humanitarian law?
Paul Lemmens (Judge): If not, to what extent did the investigation cover these other elements, not the subjective element, but precautionary measures, disproportionate use, et cetera?
Paul Lemmens (Judge): It's a question for me of knowing exactly what the situation is in principle under German law, or primarily under German law, but perhaps with extensions to the Convention too.
Linos-Alexandre Sicilianos (JudgeP): May I also echo some of the questions by my colleagues?
Linos-Alexandre Sicilianos (JudgeP): The first question goes to the applicant.
Linos-Alexandre Sicilianos (JudgeP): Your argument on the merits and the alleged violations revolve around the investigation issue.