Reflections on Jaloud v. the Netherlands

Abstract

On 20 November 2014, the Grand Chamber of the European Court of Human Rights in Jaloud v the Netherlands held that the Netherlands had failed to adequately investigate the circumstances surrounding the death of an Iraqi citizen. Mr. Jaloud had allegedly been killed by a Dutch lieutenant at a vehicle control point in Iraq in 2004. The Court attributed the impugned conduct to the Netherlands and clarified that individuals injured by shots from the checkpoint fell within the jurisdiction of the Netherlands as it was controlling the checkpoint. The Court’s decisions on attribution and jurisdiction, we argue, are open to question and may not have created the anticipated clarification. Furthermore, we argue that the implications of Jaloud for the scope of the duty to investigate the use of lethal force in out-of-area military operations remain unclear and contested. In the Netherlands, which has a history of tension between military police and active serving soldiers, as well as an investigatory policy that is cautious about criminal investigations, more clarity was needed. Since the judgment fails to set out unambiguous legal obligations, we conclude that it is unlikely that the judgment will have an impact on investigatory policy.