‘The case Jaloud v. the Netherlands (application no. 47708/08) concerned the investigation by the Netherlands authorities into the circumstances surrounding the death of an Iraqi civilian who died of gunshot wounds in Iraq in April 2004 in an incident involving Netherlands Royal Army personnel. The Grand Chamber of the European Court of Human Rights held, unanimously, that there had been a violation of Article 2 (right to life – procedural obligations) of the European Convention on Human Rights, with respect to the failure of the Netherlands authorities to carry out an effective investigation into the death of Mr Jaloud’s son.
The Court established that the complaint about the investigation into the incident – which had occurred in an area under the command of an officer of the armed forces of the United Kingdom – fell within the jurisdiction of the Netherlands within the meaning of Article 1 of the Convention (contract parties’ obligation to respect the rights guaranteed in the Convention). The Court noted in particular that the Netherlands had retained full command over its military personnel in Iraq.
The Court came to the conclusion that the investigation had been characterised by severe shortcomings, which had made it ineffective. In particular, records of important witness statements had not been submitted to the judicial authorities. No precautions against collusion had been taken before questioning the Netherlands Army officer who had fired at the car carrying the victim, and the autopsy of the victim’s body had been inadequate.’
During a peacekeeping operation, a man(the victim) was fatally killed by a Netherlands Royal Army officer in 2004 on the territory of southern Iraq, occupied by the UK. The victim is a civilian.In 2007, the father of the victim applied to the Netherlands requiring the officer to be investigated and prosecuted. However, the Netherlands prosecutor rejected to accede the request. The father appealed. The Court of Appeal ruled that the prosecutor had rightfully rejected the investigation and prosecution, as “the Netherlands troops had not exercised effective authority in Iraq” and “the Convention(ECHR) did not bind Netherlands’ troops in Iraq”.(Obviously, Iraq is not a member of the ECHR) The rejection of prosecution is not a violation of Article 2 of the European Convention of the Human Rights. Later on, the father of the victim made application to the European Court of Human Rights, stating that the Netherlands violated its obligation under Article 2 of the ECHR regarding the right to life.
This case is very interesting in two aspects.
In international law, there was overall control test (ICJ) and effective control test (ICTY-Tadic case) for the exercise jurisdiction. However, the ECtHR rendered its decision in this case and put up another term, full command. What’s the difference? In addition, there is a problem regarding the extra-jurisdiction issue. What rule applies to the criminal behaviour under the situation that State A exercised its jurisdiction over the territory of State B, occupied by State C, for the international interest? Does this situation fall into the pre-existing legal institutions of international humanitarian law?