State Liability for Wrongful Conduct in Extraterritorial Military Operations: the Challenge of Attribution in Jaloud v the Netherlands

Five years ago, I wrote a Ucall blogpost on the judgment of the European Court of Human Rights (ECtHR) in Jaloud v the Netherlands (2014), which concerned the 2004 death of Mr Jaloud in southern Iraq. Mr Jaloud died from gunfire at a vehicle checkpoint which was at the time under the authority and control of Dutch troops participating in the Stabilization Force in Iraq (SFIR). It is recalled that the ECtHR held that the Dutch investigation into the circumstances surrounding Jaloud’s death failed to meet the standards required by Article 2 of the European Convention on Human Rights (ECHR), and thus that the Netherlands had breached its procedural obligations regarding the right to life. The ECtHR’s judgment paved the way for further litigation regarding Jaloud’s violent death. Subsequent to the judgment, Jaloud’s father filed a civil suit against the Dutch State in the District Court of The Hague (hereafter ‘Hague District Court’), which rendered an interlocutory judgment on 20 November 2019. 

In this judgment, the Court held the Netherlands liable for wrongful acts surrounding Jaloud’s death, while reserving the quantification of the damages. From an international law perspective, the main takeaway of the judgment is the Court’s application of the effective control standard to attribute acts of the Iraqi troops, who manned the checkpoint, to the Dutch State. This standard, laid down in Article 8 of the International Law Commission’s Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA) is not often successfully invoked to attribute conduct to States. I argue in this blogpost that there may be an unexpected window for the successful application of Article 8 ARSIWA in the context of State attribution of conduct of public, as opposed to private actors.

At first sight, father Jaloud’s lawsuit is not governed by international law, as he requested that the Hague District Court hold the State liable for damages pursuant to Dutch tort law (Article 6:162 Dutch Civil Code). However, international law occupies a prominent place in the judgment in two respects. For one thing, the court considered that the ECHR was relevant to determine wrongfulness in the context of Article 6:162 of the Civil Code, given that the ECtHR had earlier ruled that the Netherlands exercised jurisdiction (authority and control) in the sense of Article 1 ECHR over the checkpoint. In particular Article 2 ECHR was used to give substance to the duty of care laid down in Article 6:162 Civil Code. For another, the court ruled that the question of attribution to the Netherlands of the conduct of the military and security personnel who fired at the vehicle in which Jaloud perished, was governed by the international law of State responsibility. This last issue had particular relevance for the attribution of conduct of members of the Iraqi Civil Defense Corps (ICDC) manning the checkpoint alongside Dutch troops. Per Order No 28 of the Coalition Provisional Authority (CPA 2003), this ICDC is ‘a security and emergency service agency for Iraq … composed of Iraqis who will complement operations conducted by Coalition military forces in Iraq’. Assessing the facts of the case, the court concluded that both a Dutch lieutenant and one or more ICDC members had shot at the vehicle (even if it could not be established whether Jaloud’s death was the consequence of the lethal force exercised by the lieutenant or the ICDC). The acts of the Dutch lieutenant are evidently attributable to the Netherlands, but the attribution of the acts of the ICDC members, being organs of Iraq, is less self-evident. The attribution of the latter acts is the focus of this blogpost.

In its 2014 Jaloud judgment, the ECtHR appear to touch on the attribution to the Netherlands of acts of ICDC personnel, where it held that Dutch military personnel ‘oversaw the ICDC at the checkpoint’ (para. 129), ‘had been in control of the vehicle checkpoint, and had authority over the Iraqi personnel manning it’ (para. 135), and that ‘the ICDC was supervised by, and subordinate to, officers from the Coalition forces’ (para. 150). However, on closer inspection, these considerations only served the purpose of ascertaining whether Jaloud fell within the jurisdiction of the Netherlands per Article 1 ECHR (and thus whether the Netherlands owed any human rights obligations to Jaloud), rather than the purpose of attributing acts of the ICDC to the Netherlands. Insofar as the ECtHR did discuss attribution of conduct, this pertained only to the question whether Dutch troops’ acts could possibly be attributed to the United Kingdom, which occupied southern Iraq at the time (para. 151; the question was answered in the negative). On the merits, the ECtHR only addressed conduct of the Netherlands itself, namely the violation of its positive obligations under Article 2 ECHR. The ECtHR did not address the responsibility of the Netherlands for breaches of its negative obligations under Article 2 ECHR, and it did not inquire whether the Netherlands is internationally responsible for wrongful conduct of ICDC personnel that could be attributed to it.

Under the law of State responsibility, conduct performed by actors other than the (Dutch) State is, in principle, only exceptionally attributable to the Netherlands, pursuant to the principles laid down in Articles 5-11 ARSIWA. The parties in Jaloud did not dispute that Article 8 ARSIWA was the most pertinent provision to address the attribution of ICDC conduct to the Netherlands, and thus the Court went on to apply only that article of the ARSIWA. Article 8 provides as follows: ‘The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.’ As the District Court highlights, Article 8 requires ‘a specific factual relationship between the person or entity engaging in the conduct and the State’, rather than a formal delegation of competences (para. 4.25). Applying this factual test, the Court was of the view that there are ‘sufficient factual circumstances indicating the direction and control of the State over the ICDC members at the checkpoint’ (Id.). Accordingly, it attributed the ICDC’s acts to the Netherlands.

Reliance on Article 8 ARSIWA has the distinct advantage that there was no need to inquire whether particular legal arrangements had been concluded to allow the ICDC to exercise elements of Dutch governmental authority, or to place the ICDC at the disposal of the Netherlands. If this had been the case, ICDC conduct would have been attributable to the Netherlands pursuant to Articles 5 and 6 6 ARSIWA, which provide that ‘[t]he conduct of a person or entity which is not an organ of the State … but which is empowered by the law of that State to exercise elements of the governmental authority’, respectively that ‘[t]he conduct of an organ placed at the disposal of a State by another State shall be considered an act of the former State under international law if the organ is acting in the exercise of elements of the governmental authority of the State at whose disposal it is placed’. However, it was apparently unclear whether the Administrator the Coalition Provisional Authority had formally delegated competences vis-à-vis the ICDC to the Dutch military on the basis of CPA Order No 28 (para. 4.25). The ICDC may not have exercised elements of Dutch governmental authority per agreement between the Netherlands and Iraq, thereby rendering Articles 5 and 6 ARSIWA inapplicable.

The District Court’s interlocutory judgment stands out as a rare case of a court attributing conduct to a State per the control standard of Article 8 ARSIWA. It is recalled that the threshold for a finding of State control is particularly stringent on the basis of the judgments of the International Court of Justice (ICJ) in the Nicaragua and Bosnia Genocide cases, which required a showing of effective control. In those cases, the ICJ could not establish effective control, as a result of which the impugned conduct was not attributable to the State. In Nicaragua, the Court found that ‘United States participation in the financing, organizing, training, supplying and equipping of the contras [insurgents], ‘the selection of its military targets, and the planning of the whole of its operation, is still insufficient in itself … for the purpose of attributing to the United States the acts committed by the contras in the course of their military and paramilitary operations in Nicaragua’ (Nicaragua, para. 115). In Bosnia Genocide, the ICJ found that Bosnia had ‘not proved that instructions were issued by the federal authorities in Belgrade, or by any other organ of the [former Republic of Yugoslavia], to commit the massacres [at Srebrenica]’ (para. 413).

Some literature has considered the effective control standard, used by the ICJ, to be so strict as to become unworkable in practice. Instead, an overall control standard, as applied by the International Criminal Tribunal for the former Yugoslavia in the Tadic case, has been suggested (see, e.g., Cassese). Jaloud now shows that the effective control standard is workable, at least in certain circumstances.

It is in my view no coincidence that the Hague District Court successfully applied the effective control standard in Jaloud, as the recent judgement of the Dutch Supreme Court (Hoge Raad) in the Mothers of Srebrenica case (July 2019) may have paved the way for it. In Mothers, the Supreme Court applied Article 8 ARSIWA to conduct of Dutch UN peacekeepers, considered as organs of the UN rather than the Netherlands (see the critical commentary on this aspect by Otto Spijkers and me in NILR).In Mothers, the Supreme Court held that the Netherlands did not exercise effective control prior to the fall of Srebrenica (11 July 1995), and thus rejected attribution of conduct to the Netherlands. However, it left intact the judgment of the Court of Appeal insofar as the latter attributed conduct of the peacekeepers to the Netherlands after the fall of Srebrenica, on the grounds that, at the time, the Netherlands did exercise effective control over specific conduct of the battalion considered wrongful under international law (ECHR). This part of the judgment of the Court of Appeal was not challenged by the parties. Admittedly, the Court of Appeal did not apply Article 8 ARSIWA, but rather the related Article 7 of the ILC Articles on the Responsibility of International Organizations (ARIO 2011), which provides that ‘[t]he conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.’ However, the Supreme Court did not consider these ARIO to be relevant to the question of attribution of conduct to States, as opposed to international organizations; in the Court’s opinion, only the ARSIWA (para. 3.3.1 of the Supreme Court judgment), in particular Articles 4 and 8 ARSIWA, governed the question of attribution to States. Thus, it is fair to say that, if the Supreme Court had been asked to rule on the attribution of conduct of UN peacekeepers to the Netherlands after the fall of Srebrenica, it would duly have applied Article 8 ARSIWA. In all likelihood, it would also have found that the Netherlands exercised effective control over the peacekeepers’ conduct per Article 8 ARSIWA, just like the Court of Appeal found that such control was exercised per Article 7 ARIO. The content of these control standards is after all not very different.

Jaloud, and to a lesser extent Mothers of Srebrenica, show that attribution on the basis of Article 8 ARSIWA is a distinct possibility, although perhaps in a way that was not envisaged by the ARSIWA drafters. The drafters had in mind attribution of conduct of private persons, in particular non-state armed persons and groups (see notably ILC commentaries (1) and (2) to Article 8 ARSIWA). Also Nicaragua and Bosnia Genocide concern the attribution of conduct of a non-state militia to a State. From Jaloud and Mothers, it transpires that conduct of a public actor – an organ of another State or an organ of an international organization – could, per Article 8 ARSIWA, also be attributed to States. In Jaloud, this public actor was an Iraqi government agency, whereas in Mothers it was – somewhat ironically perhaps – a Dutch peacekeeping contingent considered as a UN organ. In light of the typically strong relations and hierarchies among various public actors participating in complex multinational military operations, it may in fact be more likely that one of them will direct and control another, than it is for a State to direct and control a private actor, which ordinarily and deliberately operates at arm’s length from the State. In other words, attribution per Article 8 ARSIWA may be more likely in operations involving public actors.

If Article 8 ARSIWA lends itself to application in a State-to-State context, questions arise, however, regarding the relationship between Article 8 ARSIWA and Article 17 ARSIWA. Article 17 provides as follows: ‘A State which directs and controls another State in the commission of an internationally wrongful act by the latter is internationally responsible for that act if: (a) That State does so with knowledge of the circumstances of the internationally wrongful act; and (b) The act would be internationally wrongful if committed by that State.’ Article 17 has specifically been designed to hold one state responsible in connection with the acts of another state. One may argue that the responsibility of the Netherlands for the wrongful acts of Iraqi ICDC personnel could be engaged under this provision. However, there may be good reasons why the Hague District Court did not, and should not rely on Article 17 ARSIWA. Firstly, Article 17 requires that the Netherlands have exercised actual direction and control over the commission of an internationally wrongful act. Article 8, in contrast, appears to be less strict insofar as proof only needs to be adduced that the state directed or controlled a specific operation of which the conduct was an integral part (ILC commentary (3) to Article 8). Under Article 8, the state need not have directed or controlled the conduct or the wrongful act as such. Arguably, the Netherlands did not direct or control the very shots being fired at Jaloud by the ICDC, but it did direct and control the ICDC members (para. 4.25 of the judgment). Secondly, the examples which the ILC cites in its commentaries to Article 17 ARSIWA are mainly of historical significance, and relate to international dependency relationships such as ‘suzerainty’ or ‘protectorate’, or situations of belligerent occupation (ILC commentaries (2) and (4) to Article 17). This provision may possibly not lend itself to situations falling short of dependency or occupation; after all, the Netherlands did not occupy southern Iraq, nor was Iraq a protectorate of the Netherlands. After having attributed the conduct of ICRC personnel to the Netherlands per Article 8 ARSIWA, the District Court in Jaloud went on to establish that at least one ICRC member committed a wrongful act, as that member could not have harbored an honest belief that his use of lethal force was justified. The Dutch lieutenant, in contrast, did harbor such a belief, according to the Court, as a result of which he did not commit a wrongful act. Thus, the Court held the Netherlands only liable in respect of the ICRC’s acts.

The Court reserved the quantification of damages, on the grounds that parties had not had a full debate on this issue. The main problem here is that Jaloud’s death could have been caused by either the force used by the Dutch lieutenant (force considered as not unlawful), or by the force used by the ICDC (force considered as unlawful). As said, the State is liable for the latter and not for the former, but it cannot be established with sufficient certainty that there is a causal connection between the force used by the ICDC and the death of Jaloud. Faced with this uncertainty, the Court suggested reliance on the doctrine of proportional liability, pursuant to which, at least under Dutch law, in case of uncertain causal connection, the court can order a party to compensate a percentage of the damage which corresponds to the chance that the wrongful act caused the damage. The Dutch Supreme Court recognized proportional liability in a 2006 judgment, although in the literature it has been discussed for a longer time (see notably the 1997 PhD thesis of AJ Akkermans). Whether proportional liability will effectively be relied on in Jaloud, and what percentage of the damage the State will have to compensate, remains to be seen. On a comparative note, also the Supreme Court in Mothers of Srebrenica held the State liable for only a percentage (10 percent) of the damage. This liability determination was not based on the doctrine of proportional liability, but on the loss of chance doctrine. The Supreme Court distinguishes between both doctrines, although their outcomes are arguably not very different (see here). Hearings on the issue of liability for damages in Jaloud are planned for 19 December 2019.