Friday, August 19, 2011

Dutch responsibility for Srebrenica

Today, the Court of Appeals in The Hague published the English translation of the judgment in the cases of Mustafic and Nuhanovic versus the State of the Netherlands. The original judgments (in Dutch) of both Mustafic and Nuhanovic were published on 5 July 2011: they are almost identical.


Mustafic and Nuhanovic, two Bosnian Muslims, held the Netherlands responsible for cooperating with the evacuation of some of their relatives from the enclave Srebrenica after it had fallen into the hands of the Bosnian Serbs on 12 July 1995. All evacuated relatives were subsequently killed by Bosnian Serbs, together with thousands of other Bosnian Muslims.


Mustafic and Nuhanovic both appealed the ruling made against them by the District Court in The Hague on 10 September 2008. The Dutch District Court concluded, that the Netherlands could not be held responsible for the death of the relatives of Mustafic and Nuhanovic, since the acts of the Dutch peacekeepers in Srebrenica had to be attributed to the United Nations, and not to the Netherlands (see paras. 4.7-4.15 of Nuhanovic (District Court)).


The Dutch Court argued that, in general, the acts of peacekeeping forces should be attributed to the UN (paras. 4.8-4.11). This was based on an assessment of the international law on attribution. In view of the Dutch District Court, there were essentially two opposing views on attribution: the International Law Commission believed that the question of attribution and responsibility ultimately depended on who had “effective control,” whilst the European Court of Human Rights believed it depended on “ultimate and overall control.” The Dutch District Court chose to stay closer to the latter approach when it suggested that only if “the State cut across the United Nations command structure” of the United Nations would there be “scope for attribution to the State.” This would have been the case if Dutchbat soldiers were explicitly obligated by the Dutch State to ignore UN orders, or if they clearly acted under the command of the Netherlands as opposed to the UN (paras. 4.14.1). The District Court did not believe that the Dutch State cut across the United Nations command structure in this particular case (paras. 4.14.1-4.14.5), and thus the Netherlands could not be held responsible for any wrongful act committed by Dutchbat in Srebrenica (paras. 4.3, 4.5 and 4.15). See also the last few pages of this article about Srebrenica.


The Appeals Court did not follow the District Court’s approach on the matter of attribution. Instead of applying the European “overall command and control” criterion, the Appeals Court chose to apply the ILC’s “effective control” approach. In view of the Appeals Court, “in international law literature, as also in the work of the ILC, the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed, depends on the question which of both parties has 'effective control' over the relevant conduct” (para. 5.8, Nuhanovic (Appeal)).

In para. 5.9, the “[Appeals] Court adopt[ed] as a starting point that the possibility that more than one party has 'effective control' is generally accepted [and that] for this reason the Court will only examine if the State exercised 'effective control' over the alleged conduct and will not answer the question whether the UN also had 'effective control'.” The Appeal’s Court thus believed that both the UN and the Netherlands could be responsible for the same acts at the same time. By accepting the possibility of dual attribution in this way, the Appeals Court once again distanced itself from the District Court. It further avoided having to say something about the UN’s responsibility, which is convenient since the UN enjoys immunity from the jurisdiction of the Dutch courts.

After rejecting the District Court's interpretation of the law on attribution, the Appeals Court now had to apply its own criterion of attribution to the facts. In the end, it concluded that “it [was] beyond doubt that the Dutch Government was closely involved in the evacuation [from the enclave Srebrenica] and the preparations thereof” and that “the facts [did] not leave room for any other conclusion than that, in case the Dutch Government would have given the instruction to Dutchbat not to allow Nuhanovic […] to leave the compound or to take him along respectively, such an instruction would have been executed” (5.18).


In conclusion, the Court held that “the State possessed 'effective control' over the alleged conduct of Dutchbat that is the subject of Nuhanovic's claim and that this conduct can be attributed to the State” (5.20). An important consideration in reaching this conclusion was the fact that, at the relevant time, Srebrenica had already fallen into the hands of the Bosnian Serbs, and that the UN peacekeeping mission was not in operation anymore. Considering the circumstances, Dutchbat could have decided not to surrender the family members of Nuhanovic to the Bosnian Serbs. The UN did not oblige Dutchbat to do otherwise, and Dutchbat's cooperation in the evacuation of Nuhanovic' family members from the compound had to be attributed to the Netherlands. This does not mean the UN bears no responsiblity at all, but that is something the Court cannot rule upon, since the UN is immune from domestic court proceedings.


UPDATE:


To know more, please consult the extensive collection of the Peace Palace Library, especially the publications on Srebrenica, the war in the former Yugoslavia, genocide, fair administration of justice, and State responsiblity.

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