Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions?

(2014) 53 Military Law and the Law of War Review 287–318

16 Pages Posted: 25 Jan 2015 Last revised: 5 Jun 2015

See all articles by Aurel Sari

Aurel Sari

Law School, University of Exeter

Date Written: January 16, 2015

Abstract

Jaloud v Netherlands (2014) is the latest in a growing line of Strasbourg jurisprudence addressing the application of the European Convention to military operations conducted by its Contracting Parties outside their national territory.

The case arose out of the fatal shooting of Azhar Sabah Jaloud by Dutch troops in the early hours of 21 April 2004 at a checkpoint in south-eastern Iraq. The application was brought by Mr Jaloud’s father, who claimed that the investigation carried out by the Dutch authorities into his son’s death was inadequate and therefore in breach of the Netherlands’ procedural obligations under Article 2 of the European Convention on Human Rights (ECHR).

In this paper, I argue that the European Court has taken one step forward by introducing the notion of full command into the debate on extra-territorial jurisdiction, but two steps back by sowing unnecessary confusion with regard to the applicable rules of attribution. The judgment suggests that the exercise of control over a checkpoint is sufficient to trigger Article 1 of the ECHR even in the absence of effective control over its geographical surroundings. This may stretch the extra-territorial applicability of the ECHR to its breaking point.

Keywords: ECHR, extra-territorial application, armed forces, attribution, responsibility, Iraq

Suggested Citation

Sari, Aurel, Untangling Extra-Territorial Jurisdiction from International Responsibility in Jaloud v. Netherlands: Old Problem, New Solutions? (January 16, 2015). (2014) 53 Military Law and the Law of War Review 287–318. Available at SSRN: https://ssrn.com/abstract=2554951

Aurel Sari (Contact Author)

Law School, University of Exeter ( email )

Amory Building
Rennes Drive
Exeter, EX4 4RJ
United Kingdom
+44 (0)1392 725608 (Phone)

HOME PAGE: http://www.aurelsari.co.uk/

Register to save articles to
your library

Register

Paper statistics

Downloads
424
rank
63,631
Abstract Views
1,319
PlumX Metrics