TrustHLT/LaCour huggingface dataset:
TP1 (ThirdParty): in which this exception to the territorial nature of jurisdiction may be applied are very limited. Otherwise, the objections based on impossibility of achievement of ensuring
TP1 (ThirdParty): that all convention rights are to be secured to the local population become insurmountable.
TP1 (ThirdParty): And the approach here is not, as the applicant suggests, to seek to identify an ever smaller area in a vain attempt to find somewhere tiny enough to establish the requisite degree of control. On the facts as we understand them to be, the Netherlands was plainly not in
TP1 (ThirdParty): effective control of the area. They were in no position to secure the entire range of
TP1 (ThirdParty): convention rights and it would be fanciful to suggest that they could have done so. Nor
TP1 (ThirdParty): indeed were the UK, which is why in Al-Skhaini the Court did not base its finding of jurisdiction on this exception. Instead, the Grand Chamber accepted the conclusion of the UK Court that
TP1 (ThirdParty): it was, quote, completely impossible to find that the UK had such effective control. It
TP1 (ThirdParty): would have been, again I quote, utterly unreal to find that the UK could have secured to the inhabitants of Basra the entire range of convention rights. And the Grand Chamber
TP1 (ThirdParty): has since confirmed, if there was any doubt about that as the basis for the finding in Al-Skhaini, the Grand Chamber has since confirmed that its conclusion that the UK had jurisdiction in Al-Skhaini was not based on effective control over an area but on the State Agent Authority and Control Exception, ceded the Grand Chamber's decision in Khatam and Moldova and Russia at paragraph 114. And if the UK were not within the exception, it is frankly impossible to
TP1 (ThirdParty): see how the Dutch, with their lesser degree of control, could have been. For all of those
TP1 (ThirdParty): reasons, Mr President, members of the Court, the United Kingdom Government invites the Court to conclude that the applicant's son was not within the jurisdiction of the Netherlands for the purposes of Article 1 of the Convention at the time of his death.
Dean Spielmann (JudgeP): Thank you, Mr. Eadie.
Dean Spielmann (JudgeP): I now turn to my colleagues to ask them if there are any questions.
Dean Spielmann (JudgeP): Judge Ziemele, Judge Casadevall afterwards.
Ineta Ziemele (Judge): I will have a number of questions to the respondent government.
Ineta Ziemele (Judge): And that has to do with the fact that the court has not been provided with the memorandum of understanding.
Ineta Ziemele (Judge): Now, I would appreciate if you explained a number of points that evidently are related to this memorandum of understanding.
Ineta Ziemele (Judge): In your submissions just now, you mentioned that your forces on the ground operated strictly outside the chain of command.
Ineta Ziemele (Judge): That's the phrase that you used.
Ineta Ziemele (Judge): Now, could you exemplify that with some language from the relevant memorandum of understanding?
Ineta Ziemele (Judge): What does it mean exactly?
Ineta Ziemele (Judge): And would you follow up question to that?
Ineta Ziemele (Judge): I understand that there were several memorandums of understanding, depending on which state was a lead nation in the area, and then the participant nations.
Ineta Ziemele (Judge): And so these were the participants to the memorandum of understanding.
Ineta Ziemele (Judge): Now, in the court's possession, there is one sample of such a memorandum of understanding.
Ineta Ziemele (Judge): And I would like to know whether you would accept that, basically, these memorandums of understanding were more or less a typical sort of for, I wouldn't go as far as to say stereotype, did not contain stereotype language, but they were quite similar.
Ineta Ziemele (Judge): That's my first question.
Ineta Ziemele (Judge): Were they?
Ineta Ziemele (Judge): And secondly, would you accept that in your respective memorandum of understanding, which, as I said, we don't have, the memorandum contained something like that as concerns national contingents?
Ineta Ziemele (Judge): The principle was, and was it in your case as well, that members of national contingents will remain under full command of their participant through their national contingent commander.
Ineta Ziemele (Judge): Is that the same principle as applied in your case?
Ineta Ziemele (Judge): And would you explain to the court, what does it mean, full command, as far as the contingent commander was concerned, and the operational control attributed to the United Kingdom?
Ineta Ziemele (Judge): And my other question concerns the, it's a more technical, I should say.
Ineta Ziemele (Judge): It concerns the episode about the autopsy that was explained by the parties here.
Ineta Ziemele (Judge): We do know from the facts that no Iraqi, no Netherlands official was present at the autopsy.
Ineta Ziemele (Judge): Could you explain why?
Ineta Ziemele (Judge): And do you have any record to that effect?
Ineta Ziemele (Judge): Sort of giving evidence why this participation at the autopsy was not possible.
Ineta Ziemele (Judge): And do you have anything like that in your possession?
Ineta Ziemele (Judge): I think that is all, Mr. President.
Dean Spielmann (JudgeP): Thank you Judge Ziemele, Judge Casadevall.
Josep Casadevall (Judge): J'ai deux petites questions sur les faits.
Josep Casadevall (Judge): Peut-être sont-elles de détail.
Josep Casadevall (Judge): Peut-être la réponse se trouve déjà dans le dossier.
Josep Casadevall (Judge): Si c'est le cas, je m'en excuse.
Josep Casadevall (Judge): Je me réfère au paragraphe 10 et 11 du document avant-projet de résumé de la procédure et des faits qui est préparé par le greffe, que les partis vous connaissez, dans les paragraphes 10 et 11.
Josep Casadevall (Judge): Donc, il est dit que la nuit du 21 avril 2004, vers 2h12, une voiture inconnue traversa un poste de contrôle appelé B-13.
Josep Casadevall (Judge): C'est le premier incident qui s'est produit.
Josep Casadevall (Judge): Et il y a eu un échangement de tirs.
Josep Casadevall (Judge): Il est dit que de l'intérieur de la voiture, des coups de feu furent tirés vers des personnes qui gardaient le checkpoint, toutes membres du corps irakien de défense civile.
Josep Casadevall (Judge): Ma première question est, et je m'adresse aux deux partis, qui était en charge du poste de contrôle appelé B-13, la nuit du 21 avril 2004?
Josep Casadevall (Judge): Et ensuite, au paragraphe 11, il est dit que le sergent HS, commandant du poste de contrôle, a appelé aux militaires néerlandais, qui sont venus en nombre de 6, menés par le lieutenant A, et qui sont arrivés sur place vers 2h30, c'est-à-dire une vingtaine de minutes après le premier incident.
Josep Casadevall (Judge): Ma deuxième question est, où se trouvaient-ils les militaires néerlandais quand ils ont été appelés?
Josep Casadevall (Judge): Est-ce qu'ils étaient à côté, une vingtaine de minutes pour arriver, loin, à une certaine distance, dans un poste de commandement?
Josep Casadevall (Judge): Voilà mes deux petites questions.
Dean Spielmann (JudgeP): Merci beaucoup, la juge Motoc.
Iulia Antoanella Motoc (Judge): J'ai deux questions qui sont posées au gouvernement de la Grande-Bretagne.
Iulia Antoanella Motoc (Judge): Et ma première question est liée au fait que l'argument de la Grande-Bretagne est lié au problème de la juridiction.
Iulia Antoanella Motoc (Judge): Et ils disent que par rapport au cas de Al-Skeini et les autres, il n'y a pas une juridiction qui appartient aux Pays-Bas, parce que les Pays-Bas n'étaient pas une force occupante dans l'Irak, parce que c'était le cas selon la résolution 1443 de la Grande-Bretagne et des Etats-Unis.
Iulia Antoanella Motoc (Judge): Et que vous dites aussi que les Pays-Bas n'avaient pas un contrôle effectif.
Iulia Antoanella Motoc (Judge): Donc ma question est la suivante.
Iulia Antoanella Motoc (Judge): Qui, en fait, selon vous, en suivant le même jugement d'Al-Skeini, avait la juridiction sur les faits qui se sont passés et qui ont soumis par les applicants aujourd'hui?
Iulia Antoanella Motoc (Judge): Ma deuxième question, qui est toujours adressée au gouvernement de la Grande-Bretagne, est liée au fait qu'à un certain moment, dans votre mémoire écrite, vous dites que si la Cour va condamner les Pays-Bas pour ce cas, on aura plus de troupes pour avoir...
Iulia Antoanella Motoc (Judge): pour maintenir et pour mettre en place les résolutions des Nations unies dans des cas où il faut appliquer le chapitre VII.
Iulia Antoanella Motoc (Judge): Et que ça sera dissuadant pour les troupes européennes ou pour les troupes en général internationales pour venir en aide du Conseil de sécurité dans ces cas.
Iulia Antoanella Motoc (Judge): Ma question est la suivante.
Iulia Antoanella Motoc (Judge): Comment est-ce que vous traduisez dans des termes légals cette affirmation?
Iulia Antoanella Motoc (Judge): Je vous remercie.
Dean Spielmann (JudgeP): Merci beaucoup, M. le Juge Villiger.
Mark Villiger (Judge): I have a question, a third question to add to the two put by Judge Casadevall as regards to facts, and in particular the goings-on at the checkpoint that night, B13.
Mark Villiger (Judge): In the facts which have been prepared by the court's registry, it is written that on the road leading to the checkpoint, there were several barrels set out in the middle of the road.
Mark Villiger (Judge): This implies that cars, motorists arriving should stop, but from the applicants' representatives, we have heard that this was not the case.
Mark Villiger (Judge): There were no barrels on the road.
Mark Villiger (Judge): The barrels were on the side, thus implying that there would have been free, cars were free to drive on.
Mark Villiger (Judge): There is a contradiction here, I understand, and I would like to ask the parties how this can be resolved.
Mark Villiger (Judge): Thank you very much.
Dean Spielmann (JudgeP): Oh yes, Dr. Silvis.
Johannes Silvis (Judge): I have a short question to the responding government, which is only I would like to have their comment on whether it is possible to outsource jurisdiction from an occupying power, assuming that such an occupying power would have jurisdiction under the convention.
Johannes Silvis (Judge): And by outsourcing command and control, would it be possible to lower the threshold of jurisdiction?
Zdravka Kalaydjieva (Judge): Thank you, President. I do not consider myself an expert in extraterritorial jurisdiction.
Zdravka Kalaydjieva (Judge): However, this is precisely the reason why I would like the Dutch government to clarify their position, whether they are actually arguing that the army of the Kingdom of Netherlands was hired by the United Kingdom government for the purposes of occupation within the sense of the UN resolution, and whether they are also submitting that the Dutch soldier in this case was in fact following the UK chain of command. Would this mean that the
Zdravka Kalaydjieva (Judge): respondent government is actually seeing the UK government as the proper respondent for the purposes of investigation or for the purposes of the present convention proceedings?
Dean Spielmann (JudgeP): Thank you very much. So we have a break until 11 o'clock.
Dean Spielmann (JudgeP): Mr. Böcker.
GR1 (Government): I will, we will do our utmost to respond to the questions of your colleagues and hopefully in doing so also address a number of issues which have been brought forward by the applicants' councils.
GR1 (Government): First of all, a question by Judge Zimmler about the contents of the Memoranda of Understanding and more particularly the question whether the Dutch battalion and or its commander was outside the chain of command.
GR1 (Government): Perhaps first a word about the Memoranda of Understanding.
GR1 (Government): Let me assure you, members of the Court, I myself do not have the Memoranda of Understanding.
GR1 (Government): I have requested our defence authorities to hand it to me and it was refused because of the level of confidentiality.
GR1 (Government): This was a written understanding between the United Kingdom and the Netherlands and we do not feel at liberty to make this document available.
GR1 (Government): Having said that, of course, as we have done in the written stage of these procedures, we have certainly given some information coming from the Memorandum of Understanding.
GR1 (Government): On top of that, we have noted that you have received one of the other Memoranda of Understandings – the Memorandum which was applicable in the Polish sector of Iraq – which should at least give the Court a good idea of what kind of document we are talking about.
GR1 (Government): Having said that, I can confirm that, as I have said in my original pleadings, that the contingent commander was outside the chain of command, other than the troops themselves, of course.
GR1 (Government): They were fully within the chain of command coming from the troops to the UK authorities and ultimately the US authorities, as I have explained.
GR1 (Government): But the contingent commander was present in order to be able to assess the operations that were carried out, the orders that were given, but he was without the chain of command.
GR1 (Government): You might call him a kind of a red card holder.
GR1 (Government): I have said there was always, of course, the prerogative of the Netherlands to withdraw their troops.
GR1 (Government): Now, such a step, of course, is only taken on the basis of information, and in that sense the commander played an important role.
GR1 (Government): I think that concludes my answer to the first question of Judge Ziemelle and also, of course, addresses the comments by the counsels for the applicant when they address the confidentiality of the underlying documents.
GR1 (Government): Judge Ziemelle also had questions about the consequences of having full command, and I believe she also – perhaps it was the applicant's counsels, rather, who addressed the term independent unit, the Dutch battalion as an independent unit.
GR1 (Government): I will answer to both these issues.
GR1 (Government): Full command is the most extensive level of command and can, by definition, only be exercised by the national command authority, i.e. the highest military commander at the national
GR1 (Government): level.
GR1 (Government): In the Netherlands, full command is exercised by the chief of defence.
GR1 (Government): Full command can never be transferred to a foreign commander, although lower levels of command – and I refer to operational command, tactical command, and others – may be delegated or transferred.
GR1 (Government): Full command includes the authority to assign missions and tasks, divide and combine units, and encompasses, in addition to the lower levels of command described below, the administrative and personnel-related forms of command, e.g. assigning servicemen to units, payroll matters,
GR1 (Government): sick leave, training and developments, and the like.
GR1 (Government): Then turning to the point of independent unit, what does that mean here?
GR1 (Government): Lower units are normally combined into bigger units, e.g. teams into platoons, platoons
GR1 (Government): into companies, companies into battalions, battalions into brigades, brigades into divisions, and divisions into corps-sized units.
GR1 (Government): Let me assure you, I myself have learned a lot from the preparation of this hearing.
GR1 (Government): The Dutch battalion in ESSFER was placed under operational control of the UK division commander of the multinational division southeast, as I have said.
GR1 (Government): But it was not combined into a larger unit, for example a brigade.
GR1 (Government): In terms of command and control, it was therefore designated as an independent unit under direct command of the division commander without intermediate command levels.
GR1 (Government): So an independent unit doesn't mean that they were at liberty to do whatever they liked.
GR1 (Government): It just meant that they were an independent unit below a much higher level of command, which was the British command in this respect, and there were no intermediate levels which would normally be the situation.
GR1 (Government): The final question of Judge Zimmler concerned the question about the attendance at the autopsy.
GR1 (Government): First of all, she particularly asked, was this reflected in the official documents?
GR1 (Government): Is there any proof of this?
GR1 (Government): The course of events is reflected in the KMAR report.
GR1 (Government): In the Netherlands itself, it's quite usual that an investigating officer is present during the autopsy to witness the investigative measures taken by the coroner and be informed of the first results.
GR1 (Government): For this reason, the KMAR requested to be present.
GR1 (Government): Efforts were made to ensure the smooth running of this process by ensuring prior judicial authorization by an Iraqi judge.
GR1 (Government): However, I stress once more that the KMAR had no formal power to enforce its presence during the autopsy, and the end of this story is that the coroner was not impressed by the authorization by the judge and simply did not allow presence of the Dutch officers at the autopsy.
GR1 (Government): I come now to the questions by Judge Casadevall.
GR1 (Government): He refers to the original court statement of facts, and he has some questions about the actual situation on the spot.
GR1 (Government): First, his question was who was in charge of vehicle checkpoint 13.
GR1 (Government): The firm answer to that question is it was the ICDC who was in charge.
GR1 (Government): They were there.
GR1 (Government): They were manning the vehicle checkpoint.
GR1 (Government): And then, of course, as this case makes clear, they were supervised by the Dutch, or at least they were monitored, is rather the word, by the Dutch troops, as becomes clear from this case.
GR1 (Government): What else did I want to say?
GR1 (Government): And yeah, that's perhaps an important addition.
GR1 (Government): All of this should be seen in the light of training.
GR1 (Government): Of course, the ultimate result, the aspiration was to hand over each and every function to the Iraqis at the end, and in order to reach that goal, training was essential.
GR1 (Government): And in this respect, the Netherlands played an important role.
GR1 (Government): But it remains that the organization and the equipment of the vehicle checkpoint was first and foremost the responsibility of the ICDC.
GR1 (Government): And perhaps also on a point made by counsels for the applicant, in view of the security situation, it was customary that VCPs were moderately lit for their purpose, but certainly not more than strictly necessary, because they would become an easy focus of attacks.
GR1 (Government): We should not forget all of this still occurred in the context of a military operation.
GR1 (Government): President Casarival also asked where was the team at the moment they were requested by the ICDC to come and investigate what had happened.
GR1 (Government): As a matter of fact, the team had just shortly before been at this very checkpoint in their monitoring and training role.
GR1 (Government): Then they had moved on to another checkpoint, namely checkpoint B14, which would be half an hour's drive from there.
GR1 (Government): At the moment they arrived there, at the other checkpoint, they were informed by the ICDC commander of that checkpoint that something had happened at B13.
GR1 (Government): So immediately they made their way back and arrived shortly afterwards.
GR1 (Government): So this is the answer to that particular question of Judge Casarival.
GR1 (Government): Judge Villiger also had a question with respect to the VCP, the placement of barrels.
GR1 (Government): It should be seen as follows, that there was in the axis of the road, I think it's called, at least the middle of the road, there were barrels placed in order so cars could pass by on both sides.
GR1 (Government): They would normally have to slow down because by the placement of these barrels, of course, the road becomes somewhat narrower.
GR1 (Government): But it was not a roadblock.
GR1 (Government): So it is absolutely true that there was not an absolute necessity to stop one could go on.
GR1 (Government): But it was nevertheless clear enough that this was a vehicle checkpoint.
GR1 (Government): There were reflecting, the barrels were equipped also with reflective material.
GR1 (Government): So this is hopefully an answer to Judge Villiger's question.
GR1 (Government): I think there were also a few small piles of stones piling up in the direction of the barrels so as to, well, as a further warning sign.
GR1 (Government): But again, very important, a VCP cannot be very clearly illuminated.
GR1 (Government): That would not fit within the context of the operation.
GR1 (Government): I think I have then answered everything concerning the VCP.
GR1 (Government): That brings me to, yeah.
GR1 (Government): The question by Judge Silvis, can you outsource jurisdiction?
GR1 (Government): In fact, can an occupying power outsource jurisdiction with the effect that a lower threshold would be the result?
GR1 (Government): And perhaps I should add to this the question by Judge Kalajeva, who first of all asked whether the Dutch troops were hired by the UK and whether, let me see, and she also asked whether the UK would be the proper respondent government.
GR1 (Government): Well, I hope you will bear with me if I'm not going to go into questions which I do not feel are relevant in the relation between the applicant in this case and the Netherlands.
GR1 (Government): But having said that, the bottom line, of course, is that international humanitarian law is applicable in situations such as these.
GR1 (Government): There is the general international humanitarian law, and under certain circumstances, as we have seen in the past, also in those cases there may be applicability of the European Convention on Human Rights, very much depending on the circumstances.
GR1 (Government): But of course it is not true that if one concludes, as we do today in respect of the Netherlands, that the ECHR would not be applicable, that the convention would not be applicable, that then suddenly there are no norms.
GR1 (Government): That of course is not the situation.
GR1 (Government): There is no such thing as outsourcing jurisdiction.
GR1 (Government): Even though, as I have admitted, I have not had a chance to read the MOU literally, I can assure you that there is no provision saying that hereby jurisdiction under the convention is transferred, for example, I use this clearly as an example, from the United Kingdom to the Netherlands.
GR1 (Government): That is of course not what happens.
GR1 (Government): We have provided some important provisions which were applicable, notably the reservations by the Netherlands, but there is not a general statement that either one state or the other takes responsibility under the convention.
GR1 (Government): The question was also raised, I believe by Judge Kalajewa also, I apologize if I am wrong, why then there was no British investigation.
GR1 (Government): The answer, first of all, would be the same as I have just given, because there was no determination of convention responsibility agreed between the states.
GR1 (Government): But what was agreed was who is responsible for criminal jurisdiction.
GR1 (Government): I have already said this also in my earlier statement.
GR1 (Government): And the agreement was that in a case such as this, it could be the Netherlands that was responsible for criminal jurisdiction in respect of its own servicemen, of course.
GR1 (Government): I think, unless my colleagues feel otherwise, that I have addressed the questions by the judges, which brings me to one or two further issues, and I hope to have time to address these.
GR1 (Government): Brought forward by the applicant, first of all, on the concept of occupying powers.
GR1 (Government): The determination, the resolution by the Security Council was kind of dismissed by the Councils for the Applicant as not at all being decisive or even relevant in this case.
GR1 (Government): Well, we beg to differ in this respect.