Abdulaal Naser and Others v Denmark: Jurisdiction limits in extraterritorial military operations

The European Court of Human Rights has delivered an important judgement concerning the extraterritorial application of Convention rights in military operations. In Abdulaal Naser and Others v Denmark, twenty-one Iraqi nationals claimed they were subjected to ill-treatment by Danish soldiers during Operation Green Desert in November 2004, following Iraq's return to sovereignty.

The applicants alleged that Danish forces participated in their arrest near Basra and either inflicted or witnessed torture and inhuman treatment. They subsequently endured further mistreatment whilst detained by Iraqi authorities at Al Jameat police station. The domestic courts conducted extensive proceedings spanning eight years, hearing evidence from seventy-six witnesses and examining substantial documentary material.

The jurisdiction question

The central issue was whether the applicants fell within Denmark's jurisdiction under Article 1 ECHR. The Court emphasised that whilst jurisdiction is presumed within a State's territory, extraterritorial jurisdiction remains exceptional. It arises where a State exercises effective control over an area, or where State agents exercise control and authority over individuals through physical power or the exercise of public powers normally exercised by the territorial government.

The Danish Supreme Court had found, after detailed examination of evidence, that Iraqi forces maintained full control of the operation. Danish forces did not command Iraqi military or police units, nor did they detain, transport, or surrender any individuals to Iraqi authorities. Their role was limited to forming an outer perimeter around target areas and mentoring Iraqi forces, consistent with their UN-mandated presence.

The Strasbourg Court accepted these factual findings. The applicants failed to identify specific evidence demonstrating that Danish forces exercised public powers of a sovereign government or exerted control over them through the use of force. The domestic courts had thoroughly assessed and ultimately discounted the applicants' testimony, noting inconsistencies with medical reports and evidence of coordination that may have affected the reliability of their accounts.

Video footage from the operation, which showed Iraqi forces handling detainees roughly, was examined but found insufficient to establish Danish control. Whilst individual Danish soldiers may have witnessed harsh treatment, this did not constitute the exercise of authority over the applicants necessary to trigger jurisdictional responsibility.

Procedural obligations

The applicants alternatively argued that "special features" created a jurisdictional link triggering procedural investigative duties under Article 3. The Court noted that such features depend on particular circumstances and cited Güzelyurtlu v Cyprus and Turkey and Hanan v Germany as examples where investigations into extraterritorial deaths created jurisdictional links.

However, the Court distinguished the present case. It remained doubtful whether an arguable claim existed in 2004 that Danish soldiers had inflicted ill-treatment, particularly given the domestic courts' subsequent findings. Nevertheless, even assuming jurisdiction existed for procedural purposes, the investigations conducted were found adequate. The Military Prosecution Service investigated three times between 2010 and 2016, and civil proceedings involved comprehensive examination of evidence over fifty-two court days.

Fair trial considerations

The Article 6 complaint concerning trial fairness was declared admissible but found unsubstantiated. The applicants received free legal aid, were represented by counsel throughout, and had access to two levels of jurisdiction. Limited redaction of documents for national security purposes was found proportionate given the extensive evidence disclosed. The domestic courts' management of witness evidence, including use of videolink for some applicants, did not breach the equality of arms principle.

The judgement reinforces the restrictive approach to extraterritorial jurisdiction whilst confirming that States conducting overseas military operations must ensure effective investigations where arguable claims of ill-treatment by their forces arise.