This week and next the students in my undergraduate international law class are participating in a mock trial of the European Court of Human Rights. This year, I’ve assigned them the case of Jaloud v. The Netherlands. The case was brought to the European Court of Human Rights (ECtHR) by the father of an Iraqi citizen, Azhar Sabah Jaloud, who was killed when the car in which he was riding approached and hit the barrels surrounding a checkpoint in southeastern Iraq in 2004. Both Dutch and Iraqi Civil Defense Corp (ICDC) personnel were at the checkpoint and it is not clear who fired the shots that killed Mr. Jaloud. The petitioner and his lawyer, a Dutch attorney based in Amsterdam, have argued that Dutch authorities did not sufficiently investigate the death of Mr. Jaloud (Article 2 of the European Convention on Human Rights in its procedural aspect). The Grand Chamber heard the case in February, and you can watch some of the proceedings here. I’ve been very impressed with my students’ dedication and success in navigating the contours of this case. I’ve been equally struck by the potential implications of this case for the future of the ECtHR.
One of the major issues at stake in the case of Jaloud v. The Netherlands is the extent to which Dutch forces had extra-territorial jurisdiction over the area in Iraq in which this event took place. Unlike the British, who, as the Court reaffirmed in the case of Al-Skeini v. the United Kingdom, were clearly an occupying power, The Netherlands was not technically an occupying force. In practice, however, they certainly exercised control over the territory and undertook responsibility for “public powers.” Stuart Wallace over at EJIl: Talk! has an excellent post about the legal intricacies regarding extra-territorial jurisdiction and military operations, and I suggest you take a look.
To date, the Court has dealt cautiously with the issue of its member states’ extra-territorial human rights obligations during armed conflict and for good reason. While it seems quite obvious that a state’s human right obligations “stick” with the state in its actions abroad, the extent to which the Court can and should adjudicate on those responsibilities, particularly during armed conflict, is far less obvious. States, of course, are not likely to be particularly keen on the idea of introducing the ECtHR into the already complex web of laws and enforcement mechanisms that govern armed conflict, e.g. the Geneva Conventions, SOFAs, ROEs and UNSC Resolutions, among others.
The Jaloud and Al-Skeini cases, and the others that are sure to follow, put pressure on the Court and the Council of Europe to shine light on this opaque legal territory and also to define the Court’s own scope and limits. The question of extra-territorial human rights obligations sits right at the intersection of the Court’s greatest success–becoming a highly functioning international human rights tribunal that advances international human rights law–and its greatest challenge–maintaining its position as a highly functioning international human rights tribunal that advances international human rights law while continuing to enjoy member-state buy in. That is, securing human rights and establishing a clearer understanding of states’ extra-territorial human rights obligations is both fundamentally important for the protection of human rights and sharply dangerous for states who want to enjoy a certain degree of latitude during military operations and for the Court who, independent or not, still requires member states’ participation and support.
Whether we frame this as a principle-agent problem, or a question about the independence of international tribunals, or another in a string of examples in which state interests collide with human rights principles, it seems that the pending Grand Chamber judgment on Jaloud v. The Netherlands speaks to two bigger questions: how long is the ECtHR’s reach and what are the consequences–for the Court, for states, and above all, for human rights–if it exceeds its grasp?