On April 21st, 2004, 13 months after the beginning of Operation Iraqi Freedom, the Iraq war was entering its post-invasion, direct occupation phase. The Coalition Provisional Authority (CPA), led by Paul Bremer, had divided Iraq in four zones, under three different leaderships: US forces would have control over northern and central Iraq; Southern central Iraq would be under multinational power, under Polish command; the Southern zone, also under multinational power, would be led by UK forces. The CPA was led by the two major occupiers of Iraq – the US and the UK – and allies Australia and Poland. The assisting forces, additional troops on the ground forming Combined Joint Task Force 7, created the multinational alliance operating under the United Nations Security Council (UNSC) Resolution 1483. One nation deploying troops in southern Iraq at the time, under British command, was the Netherlands.
Gate of Camp Smitty in Al-Muthanna province, courtesy of the Australian government
Route Jackson, a main supply artery coursing through the zone in the province of Al-Muthanna, operated with different security checkpoints. One of them, named B-13, was operated by members of the Iraqi Civil Defense Corps (ICDC) under Dutch supervision. Barrels were situated in a manner to announce the checkpoint; cars were not systematically stopped, but advised to slow down in order to submit to an eventual check by the armed forces in charge of B-13. At 2.12am, a car approached the checkpoint; turning around, shots were fired from inside the car and at the ICDC forces. No one was injured, and as fire was returned, the car hastily drove away. The next facts are somehow disputed by the counsel and government; in matters of chronology and decision-making, the case rests on what follows: fifteen minutes after the first car disturbed the checkpoint, an ICDC sergeant summoned Dutch troops for assistance, troops led by Lieutenant A. Around 2.45, a Mercedes arrived near the checkpoint, hitting some of the announcing barrels on the way. Not deterred, the car continued to drive towards the checkpoint. At this moment, shots were fired at the car; Lieutenant A. shot 28 rounds from a Diemaco assault rifle, and ICDC troops would have added to the gunfire, firing shots from AK-47s.
Azhar Sabah Jaloud, son of the applicant in the case, was in the front passenger seat of the car. He suffered several bullet wounds, in arms and in the chest. Dutch troops removed him from the car and tried to administer first aid help; however, Jaloud died from his injuries an hour later. He was 29 years old.
Of all the issues raised in this case, two stand out, one that has already been covered but is unlikely to be effectively, quickly and satisfactorily resolved; the second, a stigmata of an ongoing crisis of trust and discrepancy between power and abuse of power. There will be plenty more of those cases going through the pipes of domestic courtrooms then to Strasbourg; the process will take years, years during which Iraq and its increasing instability, political corruption and chaotic mayhem will reach headlines, then disappear into the oblivion of a mission supposedly accomplished a decade ago. What will remain, however, are the skeletons of a type of warfare technology is seeking to remove us from, and the impossibility of properly enforcing the rule of law, human rights and humanitarian alike, domestic and international, unless a willingness from unconventional lawyers and activist judges push forward the aforementioned test of exceptionality.
Responsibility can’t be asserted without jurisdiction; jurisdiction can’t be declared without rules of engagement; conditions of warfare can’t be publicly debated without governmental transparency.
Checkpoint on Highway 1
The imperialistic nightmare: extraterritorial jurisdiction…
It is absolutely not surprising that the United Kingdom chose to file as a third party in this case, and be represented before the Grand Chamber one more time by James Eadie QC. Three months ago, Eadie had addressed a more or less similar case before the Court, enouncing the very same arguments: there is no such thing as extraterritorial jurisdiction; Article 1 of the Convention is very clear and does not leave much to interpretation; the Bankovic jurisprudence refused to extend jurisdiction beyond the scope of territoriality except in international humanitarian case-law. The Netherlands government found comfort, alliance and support in the presence of the United Kingdom, one of the two nations designed as Occupying Powers (OPs) under the Geneva Conventions and the relevant UNSC resolution covering the occupation of Iraq. Surely, if the United Kingdom felt free to declare they had no jurisdiction over the actions committed in, around, and beyond Camp Bucca, an assisting state such as the Netherlands could never claim to have the control necessary to extend jurisdiction to the actions of their own troops.
But someone had control over Iraq at the time; and the key lies within two documents – the UNSC resolution and the Memorandum of Understanding governing the rules of engagement of Dutch troops at the time. The latter, however, is not available for public use or has even been released to lawyers for the purpose of the litigation at hand. If we consider the arguments submitted by the Netherlands in this case:
Many shades of grey can be distinguished. There are questions of authority and control and how they relate to one another. Jurisdiction has an essentially territorial meaning – extraterritoriality is linked to exceptional circumstances. (…) There is a reluctance to globalisation by legal means of extension of human rights instruments, and this reluctance is still key.
It is absolutely correct that any extension of Article 1 has been met with absolute reluctance, even on the part of the Court itself – the famous Bankovic ruling on the admissibility (2001) that has become a point of reference for any respondent government before the court in cases of counter terrorism operations abroad or military deployment. The extension of human rights instruments – that is, the Convention to which each Council of Europe (CoE) member states is legally bound – should not exceed the frontiers of those states, and it would appear that international armed conflict, be it in the form of invasion or occupation, does not require the ECHR to be implemented in cases of a violation, regardless of its degree of gravity – in this situation, Article 2, the right to life.
In Bankovic v Belgium – and 16 other states, all members of NATO – were accused by the applicants of a violation of Art 2 for the bombing and destruction of Radio Televizije Srbije (Radio-Television Serbia, RTS) in 1999. 16 were killed, and 16 more injured. The Court ruled there was no jurisdictional link between the NATO forces and the survivors or families of the deceased; in a decision that made waves, but is difficult to decipher: it was said that the public order mission of the Court was for European purposes only; for the observance of the member-states on their own legal space only. The Federal Republic of Yugoslavia, not party to the Convention, characterized the Bankovic complaint as extra-territorial. The Court then assumed that the Convention was not designed to be extended outside of the scope. Perhaps it was not designed to be so; the history of the European Union clearly did not tend to originally evolve away from the absolute concept of national sovereignty, especially since the founding members all had extensive colonial territories and thought of expansion as a prerogative of an empire, not that of the law, much less a law protecting individual, civil and fundamental liberties. What both the United Kingdom and the Netherlands avoided was para. 70 of the Bankovic decision:
(…) the Court found that, bearing in mind the object and purpose of the Convention, the responsibility of a Contracting Party was capable of being engaged when as a consequence of military action (lawful or unlawful) it exercised effective control of an area outside its national territory. The obligation to secure, in such an area, the Convention rights and freedoms was found to derive from the fact of such control whether it was exercised directly, through the respondent State’s armed forces, or through a subordinate local administration. The Court concluded that the acts of which the applicant complained were capable of falling within (…) jurisdiction within the meaning of Article 1 of the Convention.
Referring to the Loizidou judgment, the Court engaged liability as a consequence of military action. If the extraterritorial jurisdiction can not be applied unless it falls under exceptional circumstances, and the Court never meant to exercise any of its powers outside of its contracting parties, military action indeed creates the authority and control, and the link between the two, that the Netherlands were initially mentioning in their opening statement as a justification not to extend jurisdiction. The case of war, however, seems to have reached the status of political normalcy for states engaging into armed conflict alongside the UK and the US in their endless war against terror; according to the Netherlands, “the mere presence of Dutch troops is insufficient to establish jurisdiction. Any different decision would go against the existing case law and the balance it represents.” Who said case-law was set in stone? Isn’t it the prerogative of a Court to extend – or, in any case, restrict – the scope of its powers according to the evolution of the events it is meant to characterize and arbitrate? The Court continues:
In its subsequent Cyprus v. Turkey judgment (cited above), the Court added that since Turkey had such “effective control”, its responsibility could not be confined to the acts of its own agents therein but was engaged by the acts of the local administration which survived by virtue of Turkish support. Turkey’s “jurisdiction” under Article 1 was therefore considered to extend to securing the entire range of substantive Convention rights in northern Cyprus. In sum, the case-law of the Court demonstrates that its recognition of the exercise of extra-territorial jurisdiction by a Contracting State is exceptional: it has done so when the respondent State, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government.
The test of exceptionality hereby follows three components: it needs effective control of the area, as described by the Geneva Convention; control of territory and its inhabitants under occupation; and exercise powers – usually, referring to law enforcement, political administration – under normal governmental authority. The very same test of exceptionality was raised in December before the Grand Chamber and against the United Kingdom in Hassan v United Kingdom, when a former Camp Bucca prisoner was found dead while carrying his UK-issued prison ID tag with him. The United Kingdom having been designated an Occupying Power, it was only a matter of establishing leadership over Camp Bucca. In the case of administrating a whole territory of Iraq, the UNSC Res 1483 says:
Noting the letter of 8 May 2003 from the Permanent Representatives of the United States of America and the United Kingdom of Great Britain and Northern Ireland to the President of the Security Council (S/2003/538) and recognizing the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the “Authority”) ; Noting further that other States that are not occupying powers are working now or in the future may work under the Authority, Welcoming further the willingness of Member States to contribute to stability and security in Iraq by contributing personnel, equipment, and other resources under the Authority (…)
… and governmental transparency
The Netherlands are right in asserting being transferred under the authority of an OP is not an assumption of authority. Being listed as a member of the CPA, as an assisting state, however, clearly implies control of the area where the troops will be located. As of April 2004, the day of the incident, the Netherlands had deployed a contingent of roughly 1,300 troops in south-east Iraq. Operational control was transferred, as they claim, under British command of the SFIR – itself subordinated to the US lead commanders of the CPA in Baghdad. The Netherlands claim their limited authority was restricted to administrative tasks, certainly not those usually carried out by an OP – what the Res. described as follows:
Calls upon the Authority, consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory, including in particular working towards the restoration of conditions of security and stability and the creation of conditions in which the Iraqi people can freely determine their own political future;
This is where everything blurs itself in the line of responsibility, chain of command, and this absolute necessity of proving a jurisdictional link between Jaloud, his car, and the 28 rounds fired by Lt. A. The Netherlands’ rules of engagement, gathered in a Memorandum of Understanding, were never released publicly. The document was not even handed out to the Respondent Government’s counsel in preparation for the hearing. They were not debated in Dutch media or in any democratic sphere. In fact, no one knows exactly what is contained in this Memorandum, which or whose authority were the Dutch troops subordinated to, which laws they believed they were operating under, and who, in fact, were their lead commander. According to the distribution of territorial authority as illustrated above, south-east Iraq, and the province of Al-Muthanna, was under British command. According to their opening statement, the Netherlands operated both under British command and outside of the chain of command, carrying with them the sovereign right of withdrawing troops (again, according to a document that has never been submitted). If these assertions seem to not make much sense, consider the following sentence:
The authority remained with the Dutch authorities. This however does not engage a relationship between the Netherlands and the applicant.
The circumstances in which Dutch troops were deployed in Iraq were “perfectly normal”, the Counsel continued, and troops were never extended coalition powers. It was with a great degree of lucidity that the statement on jurisdiction ended with the statement that such a debate and decision on authority and effective control of the area “would be of great legal importance to included EU states.”
Words of hesitation and apparent confusion litter the statement of the Netherlands: the presence of Dutch troops at the checkpoint would be a “coincidence”; the death of Mr. Jaloud, “unfortunate”; the actions of Lt. A., although openly disproportionate to even the untrained eye, made “under the impression” of being attacked. As the lawyers for the applicant submitted, there are way too many inconsistencies in not only the circumstances surrounding the presence of Dutch troops at the check point, but even more tragically, the investigation that followed. From the autopsy that was carried out without any Dutch official present; a report that was never translated from Arabic, except mere weeks before this hearing; testimonies from ICDC members lost, then suddenly found and exonerating Lt. A. from responsibility. The applicant submitted that the investigation carried out was insufficient; the Netherlands responded that it was impossible to meet regular and domestic standards of criminal inquiry in such a volatile environment. However right he may be in practice, history has proved that the issue of imminent threat in an occupied territory often fuels insurgency more than it quells it. Solatia will only take the occupying powers – or their assisting state – so far in bringing civil society to the side of the troops that claimed to liberate them.
The difficulty lawyers for the applicant faced when trying to get to the bottom of the inquiry is not new. Since the War on Terror, cases brought before the Grand Chamber have been marred with national security exemptions, counter-terrorism human rights derogations, and failure to debate submissions due to classification of documentation. A proper hearing before a supranational court can not be satisfied with mere allegations or half submissions by the Respondent Government that has to report it is not proper nor appropriate for them to divulge the information to the Court. If there is such a deference to the national authority as opposed to the transnational – or supranational, depending on where one stands on the EU – power of the Council of Europe, it is also a matter of respecting the judicial authority as being impartial and empowered with equity and neutrality. Justice is not blind because it doesn’t see politics; justice has been blinded by the politics of never revealing fully the matters of international relations between sovereign states with their own citizens, their own lawyers, their own journalists. In the case of the Netherlands, that pales in comparison to the horrors inflicted by Poland in the Al-Nashiri / Abu-Zubaydah case, and the furious lawyers telling the Court they never had access to documents, it is history bearing heavy over the minds of the lawyers – and of the democratic society they represent. As the opening statement for the applicant stated,
A deployment of Dutch troops in post-war Iraq was a matter of much public domestic debate. Historically, occupation is a very sensitive topic to the Dutch, and the government took a great stance to specify that Dutch troops would not participate in the occupation of Iraq. (…) The authority vested upon the Dutch is contained in a caveat of the Memorandum of Understanding, caveat that the Government did not see fit to share. We thought it would have been important (…) the mandate could have decided of the jurisdiction. Having not shared this information, we believe the Government failed its obligations.
Later, when the Judges questioned both applicant and respondent, the issue of the classification of the MoU was raised. It was not clear to the Court – or anyone else attending the hearing, following the case – who clearly was the commander in the province at the time. If the Dutch authorities were effectively operating outside the chain of command, they would have effective control in and of themselves. If they were however subordinated to an Occupying Power, the responsibility of the Dutch troops would fall within the jurisdiction of the Occupying Power – in this case, the United Kingdom. The last question raised was, in fact, the only one: if the Netherlands were not an authority by themselves and had a chain of command – is the Netherlands claiming that the UK should be the proper respondent in the case? The response from the Netherlands is more telling, perhaps too telling:
I myself do not have the Memorandum of Understanding, despite my requests. It was refused due to levels of confidentiality. The Memorandum was written between the UK and the Netherlands… we do not feel at liberty to make this document available. You can call that a red card holder.
Judicial accountability as a deterrent to peace-keeping operations
In the Hassan v United Kingdom case, James Eadie submitted that the laws of warfare had changed, for “practical reasons”. It seems the practicality of choosing which international legal instrument one is bound to when deploying troops abroad is a severe and slightly perverted interpretation of the law that could be perceived as an attempt to skewer responsibility and accountability; because with jurisdiction, does not simply come the powers of administrating and keeping the peace – comes the duty to abide by the Geneva Conventions and the Hague Regulations. Both bodies, created before World War I, could be conceived as outdated, in the context of the War on Terror, where unilateral use of force is a normalcy and UN resolutions intervene ex post facto. Establishing a long lasting jurisprudence of extending extraterritorial responsibility seems absolutely paramount to the international legal order. The cases of civilian deaths in Iraq between 2003 and 2011 need to be addressed in a way that must be substantial as opposed to symbolic; severe as opposed to casual; and systematic as opposed to sporadic. There is no such thing as strict legality in a war trial; and the complexity of international relations arise in the least desirable moments, which is precisely when the United Kingdom comes to the stand to claim that there shall be no interference of European courts in the matters of Iraq, no matter how many troops deployed over a certain period of time, and no matter the unalienable rights and duties those European states signed up on when creating the Convention.
Three Judges of the Grand Chamber as James Eadie QC prepares to explain why the Court can’t extend extraterritorial jurisdiction. AGAIN.
It had always been the belief of the United Kingdom, and, frankly, the position of many states irrevocably attached to the issue of sovereignty that jurisdiction should never be extended. It seems from Eadie’s frequent appearances in Strasbourg, lately coinciding with Grayling’s outbursts against European interference, that the very fact the Kingdom responds to calls from the Court is already a miracle. When it comes to extraterritorial jurisdiction, it simply can not be. Human rights law maintenance in time of warfare can not, according to Eadie, “expand incrementally from case to case”. But beyond the simple refusal to abide by the rules of the Court in their military operations abroad, Eadie submitted a point that has once surfaced in the Behrami case: human rights law as enounced in the Convention can’t possibly restrict the mission granted by the UNSC under Chapter VII intervention. In this 2007 decision against France, once more in the context of the war in Kosovo, the court made this very important statement (para. 149):
Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN’s key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim.
Put simply, any mission carried out by EU member states and sanctioned by a UNSC resolution covered by Chapter VII – humanitarian intervention – doesn’t fall within the jurisdiction of the Court. To decide otherwise would be a hindrance to the mission itself, and even go against the wishes of the UN, whose supremacy isn’t questioned at any point. It isn’t question in this case, either. What is important to mention here, as Eadie quotes this paragraph in order to maintain that extraterritorial jurisdiction can’t be applied as it would be contrary to a peacekeeping mission abroad – is the wording. A Chapter VII resolution is not a sanction of unilateral use of force. It does not permit the invasion and semi-permanent or permanent occupation of a state. A Chapter VII resolution is voted and implemented as a peace-keeping mission, to restore security, the rule of law, establish provisional authority pending monitored elections, and progressively reconstitute the sovereign authority of the invaded state. A Chapter VII resolution always, always mentions that each contracting party in the resolution – be it straight OPs per the GCs or assisting states in the case of the CPA – must abide by international law standards.
the division of Iraq under Combined Joint Task Force 7, here in September 2003
Applying extraterritorial jurisdiction in the case of a wrongful death of a civilian during the occupation of Iraq is not a violation of the mission authorized by the Security Council. It is applying the international law standards that civilians are protected persons under the Geneva Convention and any wrongful death occurred should be thoroughly investigated by the respondent state and punished under the relevant criminal authority that has been described in the rules of engagement.
There are no rules of engagement publicly available for review in this case. The government of the Netherlands never released them, never debated its commitment and collaboration with the United Kingdom in the occupation of Iraq. The question of jurisdiction in the province of Al-Muthanna, in which a 29 year old man was shot dead by a Dutch lieutenant for failing to stop at a checkpoint in the middle of the night, will be extremely hard to decide following Article 1 – but following the non-existent rules of a hidden document. What Eadie was claiming, in fact, is that extending jurisdiction of human rights law to a military deployment – even sanctioned by the UN, again, following the invasion, not sanctioning the invasion – would be a deterrent to future peacekeeping missions. Making the public, direct and almost irrevocable decision to extend responsibility to the members of a military coalition for their actions against civilians and property on the ground would make member-states less likely to cooperate in the future. In short, Eadie is stating the following: if we engage responsibility in military actions, no member state will ever submit to the rule of law anymore. The end justifies the means; regardless of the fact that the UNSC Res 1483 never, never granted immunity to any member state of the CPA:
Calls upon all concerned to comply fully with their obligations under international law, including in particular the Geneva Conventions of 1949 and the Hague Regulations of 1907;
International law is not suspended regardless of the “principled importance” of the mission carried out by the US and the UK in Iraq, despite Eadie’s claims; to quote one of the judges in the Hassan v United Kingdom hearing, “human rights law is not rhetorical”.
As several cases related to unlawful detention, torture or death occurring in Iraq during the invasion and the occupation phases find their way through the Court, it is important to remember that warfare is not a lawless, chaotic and messy state of affairs. It used to be, at a time when imperialistic thirst was unshackled, when legal accountability was reserved for deserting troops, when martyrdom was enviable, and when power ruled everything, relegating equality, freedom and security to second-level aspirations that would never grant anyone the territory or the money that were asking for. The Geneva Conventions were born out of what a former professor of mine once referred to as “rivers of blood and iron”. Although many of our contemporaries are now decrying the very concept of a “just war”, as they attempted to regulate the course of warfare, it would behoove us to keep in mind that we have regressed and marched backwards to a point where the laws of war are merely words carved into stone for us to feel safe and secure at home, but never actually enforced in the reality of the various battlefields – declared and now more and more often undeclared – around the world. Unless we re-affirm our collective and unequivocal commitment to the laws of war and international humanitarian law – and, of course, international human rights law – the immorality of the rivers of blood and iron will become the non-exceptional circumstance affirmed by the respondent governments in this case. If the occupation of Iraq does not pass the test of exceptionality, we have achieved, with this sorry state of affairs that has not seen an end for the Iraqis, war as political normalcy.
Two things are to take away from this case, that will sadly remain anonymous to most because little ink is shed over assisting states in Iraq; even less is mentioned about the countless daily casualties that we have learned to assume are the regular and casual toll of war. One, that unless we abide by a culture of judicial activism in which the transcendent politics of international cooperation in counter-terrorism and warfare do not trump the rule of law, and the unalienable rights we have worked so hard to enshrine, we will lose more and more rights by the minute, and a culture of secrecy and classification will ensure that we are never vigilant. Two, that accountability and responsibility are never a deterrent in peacebuilding, peacekeeping or humanitarian action. They are not mutually exclusive, and were never meant to be. There is no justice without accountability; there is no liberty without responsibility; and there is definitely no permanent security unless we empower transnational and supranational bodies with the possibility to judge states and the members of their leadership for the actions they have taken in our name. Per the applicant’s counsel:
Jaloud wasn’t suddenly hit by a deadly object falling from the sky, while in his own country, under his own government. He was deliberately shot at, for the reason that he had not timely complied with the orders issued by the Dutch army. (…) Bullets themselves do not create jurisdiction, it is the firing of the bullets that express authority and control; and the responsibility that comes with it.
This is the principled importance.