A Silent Revolution? The Extraterritoriality of the ECHR in Jaloud v Netherlands

Introduction

Does the European Convention on Human Rights (ECHR) apply outside the territory of states parties? Do those states have human rights obligations towards individuals abroad? And if so, when? When we are talking about the extraterritoriality of the ECHR, we are trying to answer these questions. The ECHR in Article 1 provides that states parties “shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention”. Following this wording, the European Court of Human Rights (ECtHR or the Court) considers the question of extraterritoriality under the category of jurisdiction. It is now generally accepted by the Court and scholarship that the ECHR may – and sometimes does – apply extraterritorially, but the question of when is still controversial.

In developing its case law on extraterritoriality, the ECtHR has followed a somewhat confusing path, frequently oscillating between various models and sometimes contradicting itself. Much of the relevant case law has been criticised to that effect (e.g. Milanovic 2011) and its suspense has been compared to that of a good thriller (Sari 2014). In any event, it is not always what one would call coherent and every new judgment seems to add another layer of confusion. The case of Jaloud v Netherlands is at first glance no exception. However, there might actually be a potential for clarity. I will argue for an interpretation that both marks a departure from the past case law and explains why the latter has been so confusing.

The case concerned theUS_Navy_Iraq checkpoint_ death of Azhar Sabah Jaloud following a shooting at a checkpoint in occupied Iraq, manned by Dutch troops and members of the Iraqi Civil Defence Force (ICDF). The applicant alleged that the investigation into the incident was insufficient under the procedural requirement of the right to life enshrined in article 2 of the ECHR. Decided in November 2014, it has so far been discussed primarily in terms of its ramifications for the application of the ECHR in armed conflicts and their aftermath (Sari 2014; Borelli 2015). Some comments mention the issue of jurisdiction but focus on specific problems regarding the differences between jurisdiction and attribution of conduct (Milanovic 2014(a); Sari 2015). Now that the dust has settled, the time seems ripe to consider a few deeper implications of Jaloud. These are easily overlooked as the judgement is interesting not because of what the Court says but because of what it does not say.

Facts of the case

The applicant’s son was killed in an incident at checkpoint in occupied Iraq on 21 April 2004. The checkpoint was manned by soldiers of the ICDF. After an initial exchange of fire with a car, the Iraqi soldiers called a Dutch patrol to the checkpoint. After they arrived, another car hit several barrels and the Dutch troops opened fire. It is unclear if the ICDF soldiers fired shots as well. Azhar Sabah Jaloud was hit and died shortly after. All of these events took place in an area where the UK was an occupying power and Dutch operations were carried out under the command of an officer of the British armed forces.

The ECtHR had to determine if the Dutch armed forces failed to carry out their obligation to investigate under Article 2 of the ECHR. Before it could do that, it had to ascertain whether the Netherlands had extraterritorial jurisdiction. It found that the Netherlands had jurisdiction, that the Convention was thus applicable, and that the shortcomings of the investigation did indeed violate Article 2.

Legal principles

Currently, the Court operates with two principles of extraterritorial jurisdiction, personal and geographical, which are framed as exceptions because the assumption is still that jurisdiction is primarily exercised on national territory (on the latter see Garlicki 2014). The principles where first outlined in Al-Skeini v United Kingdom and the Court quoted them extensively in Jaloud (para 139). According to the personal model, a state has jurisdiction when state agents have physical power or control over an individual abroad and their actions are attributable to the sending state rather than the territorial one (Al-Skeini, paras 133-136). The paradigmatic example here is the situation of a person who is detained by foreign agents, be it in times of peace with the cooperation of local agents as in Öcalan v Turkey, or during belligerent occupation as in Hassan v United Kingdom. The other principle describes jurisdiction as the exercise of control over an area. In the words of the Court it

occurs when, as a consequence from lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State’s own armed forces, or through a subordinate local administration (Al-Skeini, para 138).

The paradigmatic backdrop against which the geographical model was developed is belligerent occupation as is the case in Al-Skeini or Loizidou v Turkey.

Application and interpretation

In Jaloud, the ECtHR takes care to meticulously outline these two exceptions to the principle that a state’s jurisdiction is primarily exercised on its national territory. The same cannot be said for their application. The Court oscillates between the application of the personal and the geographical model. At the outset, the ECtHR determines the relationship of Dutch troops with UK armed forces because the UK was the formal occupying power in the region (paras 141-149). While an explicit reference to the geographical model is missing in these passages, it seems nevertheless clear that the Court was trying to establish that whether or not a state has control over an area does not depend on its status as an occupying power (para 142). The reason for this assertion can only be that the Netherlands was in fact not the occupying power in South-Eastern Iraq at the time but was still perceived as having jurisdiction by the ECtHR. However, when it comes to the actual pronouncement of jurisdiction the Court uses the phrase “authority and control over persons passing through a checkpoint” (para 152), which is reminiscent of the personal model (for a similar critique, Haijer and Ryngaert 2015: 179-180). In brief, the Court simply does not specify which model it applies.

It seems the ECtHR in Jaloud is struggling to separate the personal model and the geographical one because the Dutch troops asserted authority over a very small and unsteady area in the form of a checkpoint but still had the power to determine what was happening to people who passed through it. The switching back and forth between the two models could be read in two ways. Either the Court implicitly confirmed that the models are increasingly failing to clarify cases because they ultimately collapse into each other, or the models were never separate in the first place.

On the first reading, the ECtHR confirms a valid criticism. The geographical model collapses into the personal one when it is applied to smaller and smaller areas. Applying the personal model consistently, on the other hand, makes jurisdiction a meaningless criterion because it means that any extraterritorial conduct constitutes jurisdiction (Milanovic 2014(b): 41, 43). Accordingly, this interpretation of Jaloud would mean that the Court has hit the point where the models it operates with can no longer clarify its case law. This would explain the ECtHR’s silence on which model it was applying in Jaloud but paints a bleak picture for the future and provides us with little perspective to make sense of this line of case law.

The second reading suggests that the models were never separate to begin with. This would confirm the view that jurisdiction always denotes control over persons and that control over territory merely functions as shorthand in this context (Besson 2012: 874-876). In other words, what is relevant is control over people in a given area, not control over the area as such. Given that human rights are claims of individuals against a state such a reading makes sense. It also implies that Jaloud is actually not as confusing as it seems at first glance. Indeed, if we look at the models as complementing each other, a different picture emerges that allows Jaloud to be seen as a radical departure from the previous case law.

Power and the search for proxies

In the context of Article 1 of the ECHR jurisdiction is a concept defined by factual power (Milanovic 2011: ch 2). This is exemplified by the Court’s definition of the personal model, which reads “physical power or control” over a person (Al-Skeini, para 136). The problem with power as a concept is that it is dispositional. It is, in other words, a potential and as such not observable (on power as a philosophical concept see Morriss 2002). This makes it unsuitable as a tool to delineate functions and responsibilities in legal, administrative, and military practice. What is needed then are proxies, which allow the relevant institutions to assess who has the relevant kind of power in the situation in question.

To this end, it would be necessary to know what kind of power that would be and to then search for the right proxies. The common thread in the case law of the ECtHR seems to be that the relevant kind of power is usually associated with the potential for physical power and thus harm coupled with whose rules are being applied. One without the other is not enough. This would explain why an aerial bombing abroad does not bring the victims of such an attack within a state’s jurisdiction (Bankovic and others v Belgium and others) but a shooting at a vehicle checkpoint (as in Jaloud) does; even given the fact that neither of the concerned states controlled the relevant territory abroad.

In the case of the airstrike (Bankovic and others), the potential for harm was present and manifested itself but the party carrying out the attack was not looking to apply their rules. A checkpoint is different. It implies that whoever is present at the checkpoint does not only have the potential to exercise physical power but also applies their rules as the clear demand towards persons passing through to obey any orders given. It is telling in this respect that the Court in Jaloud took great care to establish that the Dutch troops exercised some command and the Netherlands established policies for their armed forces but neglected to differentiate between the models of jurisdiction (paras 142-149). The approach first established in Jaloud was confirmed in October 2015 in Pisari v Moldova and Russia. Russia was found to have jurisdiction over checkpoints in a security zone that were manned and controlled by Russian soldiers (para 33).

It is important to note here, that the criterion of whose rules apply seems to be rather thin in the sense that even an implicit appeal not to escape (as in the case of arrest or detention) or to stop a vehicle (as with the checkpoint) suffices. I am thus not suggesting anything as ambitious as political or even legal authority (see Besson 2012: 864-866, who defends a thicker version). The thinner interpretation also chimes in with the ECtHR’s formulation of “carry[ing­] out executive functions” (Al-Skeini, para 135; Pisari, para 33) as opposed to legislative functions. Nevertheless, taking into account whose rules apply is closely associated with the nature of the state as a political entity embodying authority.

Conclusion: Jaloud as a Crystal Ball

The implication of the above is that Jaloud and especially the Court’s silence on whether a checkpoint would be examined under the personal or the territorial model could become a pivotal moment for extraterritoriality. Jaloud could mark the emergence of a new and potentially decisive principle that could replace the seemingly separate application of the personal and the geographical model. The Court did not clarify which model it applied but at the same time examined at great length the normative content of the operations of the Netherlands. Hopefully, the ECtHR’s silence on the matter of which principle it was applying means that the Court is admitting that it is not actually applying them. It could also be a concession to the effect that the Court instead looks for proxies for what it sees as the kind of power that constitutes jurisdiction. Whether this is good news or not is a different question. It does mean, however, that we – and the Court – may want to change the focus of the discussion accordingly.

MEET THE AUTHOR

Lea Raible is a PhD candidate and teaching fellow in jurisprudence and legal theory in the Faculty of Laws at University College London, and a Visiting Researcher in the Department of Political Science at Yale University.

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