Jaloud v. The Netherlands and the (Over?)Reach of the European Court of Human Rights

imagesThis 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?

 

 

New EJIR Article: The Power of Human Rights Tribunals

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Can the European Court of Human Rights affect policy change?  In my new article, “The Power of Human Rights Tribunals: Compliance with the European Court of Human Rights and Domestic Policy Change,” now available for advanced viewing on the European Journal of International Relations’ website, I suggest that the European Court of Human Rights (ECtHR) can be a powerful tool for improving human rights, particularly when the issue of compliance is taken up by domestic actors, like executives, judges, legislators and activists.  That is, the ECtHR, like many—indeed most—international tribunals has very little enforcement capacity.  The more able and willing domestic actors are to enforce the Court’s rulings domestically, the greater the impact the ECtHR will have on states’ human rights policies.  Further, the more constraints executives face at home, the more likely states are to comply with the European Court’s rulings.  Why?  Compliance with the European Court of Human Rights is never a routine process, even for states with the strongest human rights practices.  Instead, compliance is a politically contested process, and the more institutionalized the process, the more likely states are to comply.  When executives have a great deal of control over the compliance process they are able to stall, manipulate, or even avoid compliance altogether. 

To test these assumptions, I examine over 1100 discrete recommendations given to states by the European Court of Human Rights and/or the Committee of Ministers, with a particular focus on those recommendations that require states to change their human rights policies and practices.  My findings suggest that the key to improving the effectiveness of the ECtHR is through compliance at home.  More robust domestic institutions lead to higher rates of compliance, which, in turn, leads to more policy change.  

Russia and Crimea: What Role for the European Court of Human Rights?

The last week of February, before ousted President Victor Yanukovych surfaced in Russia and before Russian troops moved in on Crimea, the Ukrainian Parliament voted to send Yanukovych, the former minister of the interior and the former prosecutor general to the ICC.   Members of Parliament wanted the three men tried for crimes against humanity for the violence committed against civilians during the previous weeks of protests.  Of course, getting cases to the ICC doesn’t work quite like that.

That said, there is a potential role for an international court here, particularly the European Court of Human Rights.   Not too surprisingly, Russia and the European Court of Human Rights have not enjoyed an easy relationship.  Russia’s failure to comply with the Court’s measures of non-repetition mean that clone and repeat cases stemming from Russian violations have flooded the Court.  But, as I argue here, so have clone cases from Italy, Turkey, and yes, Ukraine.  In many ways, Russia has been an easy—if justifiable—scapegoat for some of the Court’s problem.

Thus far, the allegations of an anti-Russian bias have been indirect.  By that I mean that Western European member states could very well push harder on Russia than on other states in the political organs associated with the execution of judgments, such as the Committee of Ministers.  Now, though, there is a real possibility for Western member states to use the Court directly, through an interstate complaint, to chide Russia for its bad behavior.

Interstate cases represent a tiny percentage of the ECtHR’s caseload and for good reason.  When states bring interstate complaints to the Court, they run the risk of retaliation.  That fear, as well as arguments about state sovereignty that persist despite the fully functioning individual petitioning mechanism, curb the number of interstate petitions.  Here is an opportunity to invest the interstate dispute mechanism new relevance and vigor.   Russia’s move into Crimea and the Ukraine’s reaction to domestic protests before that will undoubtedly prompt a flurry of individual petitions.  Russia’s actions in Crimea should also prompt an interstate petition. It would be a shame if, in this instance when the grounds for an interstate petition seem pretty clear, Western European member states missed their chance.

An interstate petition at the ECtHR will obviously not solve the crisis in Crimea.  What it can do, however, is two-fold.  First, such a petition can (re-)insert human rights concerns into the narrative of the crisis that has thus far skewed toward geopolitics and away from humanitarianism.  Second, it can revitalize the interstate dispute mechanism as a political and judicial tool that, when used sparingly, can send a clear signal about the member states’ commitment to human rights, even when geopolitical concerns get thorny.