Reference no: EM13775481

FACTS

Continentalia and Islandia are two European Countries that are members of the Council of Europe and therefore parties to the European Convention on Human Rights. From 2011 troops of Continentalia participated in the Stabilization Force in Orientalia, a state in Middle East. The forces of Continentalia (one battalion) were under the command of an office of the armed forces of Islandia. The participation of Continentalia forces was governed by a Memorandum of Understanding between Islandia and Continentalia.

On 8 November 2010 the United Nations Security Council, acting under Chapter VII of the Charter of the United Nations, adopted Resolution 9999. The Resolution decided, inter alia, that Orientalia had been and remained in material breach of its obligations under previous United Nations Security Council resolutions to disarm and to cooperate with United Nations and International Atomic Energy Agency weapons inspectors. Resolution 9999 requested the Secretary-General of the United Nations immediately to notify Orientalia of the Resolution and demanded that Orientalia cooperate immediately, unconditionally, and actively with the inspectors. Resolution 9999 concluded by recalling that the Security Council had "repeatedly warned Orientalia that it would face serious consequences as a result of its continued violations of its obligations". The Security Council decided to remain seized of the matter.

On 20 March 2011 a Coalition of armed forces under unified command, led by the United States of America with a large force from Islandia, commenced the invasion of Orientalia. Major combat operations in Orientalia were declared complete on 1 May 2011. Thereafter, other States sent personnel to help with the reconstruction effort.

On 21 April 2012, at around 2.12 a.m., an unknown car approached a vehicle checkpoint (VCP) in an occupied province of Orientalia, where battalion of Continentalia was deployed. The car slowed down and turned. From inside the car shots were fired at the personnel guarding the VCP, all of them members of the Orientalia Civil Defence Corps (OCDC). The guards returned fire. No one was hit; the car drove off and disappeared into the night.

Called by the checkpoint commander, OCDC Sergeant and a patrol of six Continentalia soldiers led by Lieutenant A. arrived on the scene at around 2.30 a.m.Some fifteen minutes later a Mercedes car approached the VCP at speed. It hit one of several barrels that had been set out in the middle of the road to form the checkpoint, but continued to advance. Shots were fired at the car: Lieutenant A. fired 28 rounds from a Diemaco assault rifle; shots may also have been fired by one or more OCDC personnel armed with Kalashnikov AK-47 rifles (see paragraphs 21 and 49-52 below). At this point the driver stopped the car.

The applicant's son, Mr X, was in the front passenger seat of the car. He had been hit in several places, including the chest. Continentalia soldiers removed him from the car and attempted to administer first aid. Despite this, Mr X died. He was declared dead one hour after the incident.The body was subjected to X-ray examination. The radiographs show objects identified as metallic inside the chest and elsewhere. An autopsy was performed by an Orientalian physician, who drew up a brief report in. Metal objects identifiable as bullet fragments were found in the body. It was not determined by whom the bullet or bullets had been fired, nor from what weapon.

The applicant, is Mr X's father, who lives in Orientalia.The applicant alleged that Continentalia had failed to meet its obligations properly to investigate the death of his son with a view to bringing the person responsible to justice. He relied on Article 2 of the European Convention on Human Rights, which provides as follows:

"1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection."

The respondent Government of Continentalia denied that there had been any such violation. Also, Continentalia Government argued that the events complained of did not fall within the "jurisdiction" of the Continentalia within the meaning of Article 1 of the Convention. Firstly, Continentalia was not an "occupying power" in terms of international humanitarian law. Nor had Continentalia assumed in Orientalia any of the public powers normally to be exercised by a sovereign government. These powers were entirely in the hands of the United States and Islandia, which had set up the Coalition Provisional Authority. Continentalia contingent had at all times been under the operational control of the commander of an officer from Islandia. Although in the early stages of operations Continentalia troops had had to involve themselves in law enforcement, in the course of 2012 that responsibility had passed into the hands of Orientalia authorities.

By the time of the events complained of, therefore, police powers were not exercised by Continentalia authorities or troops. The death of Mr X had occurred at a vehicle checkpoint established and manned by the OCDC. Although Continentalia military personnel had been there at the relevant time to observe and advise, this did not imply a hierarchical relationship such as would render Continentalia responsible: authority rested with the Orientalia security forces. Also,Continentalia forces had not at any time exercised physical authority or control over Mr X, since he had never been in their custody. More generally, Continentalia forces had been present in the province of Orientalia in question in limited strength and they had not had the degree of control needed to bring the area within Continentalia's "jurisdiction" for purposes of Article 1.

QUESTION: please discuss the international legal issues arising from Mr. X's complaint, and provide your opinion on the case.