The Netherlands responsible for three deaths in the Srebrenica genocide: Court of Appeal in The Hague rules on the attribution of conduct of Dutchbat during the Srebrenica genocide.

Sylvia Maus

According to a recent ruling of the Dutch Court of Appeal in The Hague, the State of the Netherlands is responsible for the death of three Muslim men during the massacre in Srebrenica in 1995. With its simultaneous and practically identical judgments regarding the civil claims of Mustafic-Mujic et al v. The Netherlands and Nuhanovic v. The Netherlands[1], issued in July 2011, the Court of Appeal reversed the also practically identical judgments of the District Court in The Hague of 10 September 2008.[2]

In short, the Court found actions of the Dutch battalion (“Dutchbat”) of the United Nations Protection Force (UNPROFOR) to be unlawful under human rights law and considered those unlawful acts attributable to the Netherlands.

The rulings, even though issued by a national court, will most likely spur renewed debate on a much-contested topic of international law, namely the question of accountability for unlawful conduct of troop contingents in international missions. Before going into more detail on the issues of applicable law and attribution of conduct below, first some factual background will be presented.

Background

On the evening of July 13, 1995, members of the Dutchbat forced two of the plaintiffs’ relatives to leave the UN compound at Potocari. The first one was Rizo Mustafic who was working as an electrician for Dutchbat. He had expressed his wish to stay at the compound together with his family who had, after the fall of Srebrenica two days earlier, sought refuge in the compound. The second one was Muhamed Nuhanovic, the brother of Hasan Nuhanovic. The latter was working as an interpreter and was considered part of Dutchbat, allowing him to be evacuated together with Dutchbat. Also Hasan Nuhanovic made several – unsuccessful – attempts to place his family, especially his brother Muhamed, on the list of locally-employed personnel to be evacuated. Hasan Nuhanovic’s father, Ibro Nuhanovic was in the end allowed to stay in the compound because he had been a member of a civilian committee that had held consultations with General Ratko Mladic of the Bosnian Serb Army. Since Nuhanovic’s mother and brother were evicted from the compound, the father chose to leave with them. Mustific as well as the three members of the Nuhanovic familiy were deported by the Bosnian Serbs and killed.

Forced eviction was unlawful

The Court comes to the conclusion that, by the time of the forced eviction in the evening of July 13, Dutchbat had gained different pieces of information about the fact that the Bosnian Serbs were committing serious crimes, in particular against the able-bodied male refugees. According to the Court, Dutchbat

“reasonably could not have drawn any other conclusion than that the able-bodied men that were going to leave the compound from that moment to be 'evacuated' by the Bosnian Serbs, ran the real risk of being killed or at least of being subjected to inhuman treatment.“[3]

Therefore, Dutchbat did not have the right to send the victims away from the compound.[4]

Applicable law: avoiding the ‘extra-territorial application’-stumbling block

In coming to this conclusion, the Court applied international human rights standards to the acts of Dutchbat without setting the sail into the stormy waters of extra-territorial application of human rights treaties.[5] Instead, it found that the relevant legal principles, namely articles 2 and 3 ECHR and articles 6 and 7 ICCPR (right to life and prohibition of inhuman treatment) have to be considered as rules of customary law by which the State of the Netherlands is bound[6] – irrespective of the question of extra-territorial application of the two human rights treaties.[7] With respect to potentially relevant legal principles of the Genocide Convention, the Court did not give an opinion.[8]

Attribution of conduct: ‘effective control’ it is

The second key aspect of the ruling concerns the question of attribution of conduct of national contingents in international (peace) operations. As critical observers are most aware, national and international jurisprudence has so far remained rather inconsistent on this matter. Here, the Court does not follow the argumentation of the Dutch government (and the District Court for that matter) that the conduct of Dutchbat was not attributable to the State of the Netherlands on the ground that they were, as blue-helmets, under ‘command and control’ of the UN.[9] Interestingly, the Court avoids reference to pertinent case law, most notably the cases Behrami/Saramati before the ECtHR.[10] Instead, in establishing ‘effective control’ the criterion for the attribution of conduct, it relies on relevant international law literature as well as on the work of the International Law Commission, especially its Article 6 of the draft articles on the Responsibility of international organizations of the ILC.[11] The ‘effective control’ test is thus further strengthened as the standard answer to the question as to whom a specific conduct of such troops should be attributed – and the significance of Behrami/Saramati’s unfortunate ‘overall authority and control’ further declines.

Moreover, it is interesting to note that the Court explicitly points to the “generally accepted” possibility that more than one party has ‘effective control’ resulting in the possibility that conduct can be attributed to more than one party.[12] Hence, the fact that a given conduct has been found to be attributed to one party does not preclude the second party from being attributed the very same conduct. As if to underline the Court’s finding on this point, the ECtHR hints to the very same possibility in its eagerly awaited decision in Al-Jedda.[13]

With regard to the present cases, the Court concludes that Dutchbat, in principle, was under command and control of the UN. However, by the time of the forced evictions, the Dutch government had taken on a more active role and had ‘effective control’ over Dutchbat.[14] The conduct of Dutchbat can thus be attributed to the State of the Netherlands.

Conclusion

Mustafić-Mujic and Nuhanovic will become a familiar sound when talking about attribution of conduct, given its clear statements regarding the ‘effective control’ test and double attribution. Moreover, they might serve as a precedent for more claims by relatives of victims of Srebrenica, which, so far, have largely been unsuccessful. To be unmistakable, the Court stresses that the judgments only address the specific situations of Nuhanovic and Mustafic and their respective families and do not give an opinion on the situation of other refugees inside or outside the compound.[15]  Nevertheless, the interesting part here is fact that the Court finds the conduct of Dutchbat to be attributable to the Netherlands in combination with the explicit possibility of double attribution. This is important since in preceding lawsuits, attribution to the Netherlands has often simply been ruled out with reference to an already established attribution to the UN, which in turn successfully relied on immunity.[16] Thus, the present judgments represent an important contribution in the effort to increase accountability for violations of international law in international missions.

Footnotes

[1] Mustafić-Mujić et al v. The Netherlands, BR5386, Gerechtshof 's-Gravenhage , 200.020.173/01, Judgment (English translation), July 5, 2011, available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 and Nuhanović v. The Netherlands, BR5388, Gerechtshof 's-Gravenhage , 200.020.174/01, Judgment (English translation), July 5, 2011, avaible at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388.

[2] BF0181, Rechtbank 's-Gravenhage , 265615 / HA ZA 06-1671, Judgment (english translation), September 8, 2008, available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0181&u_ljn=BF0181 and BF0182, Rechtbank 's-Gravenhage , 265618 / HA ZA 06-1672, Judgment (english translation), September 8, 2008, available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0182&u_ljn=BF0182.

[3] Para 6.7 (if not stated differently, the numbers apply equally to both judgments).

[4] Para 6.8.

[5] Only two days after the Court’s judgements, the Grand Chamber oft he European Court of Human Rights did address the issue in its judgment on Al-Skeini et al. v. the United Kingdom, see Application no. 55721/07, July 7, 2011, available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887952&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649).

[6] Para 6.3.

[7] In addition, the ICCPR had been incorportated into the domestic law of Bosnia and Herzogovina and was thus applicble also an that basis, see para 6.4.

[8] Para 6.22.

[9] Para 5.8.

[10] Application no. 71412/01 by Agim Behrami and Bekir Behrami against France and Application no 78166/01 by Ruzhidi Saramati against France, Germany and Norway, European Court of Human Rights, Grand Chamber Decision as to the Admissibility (4 May 2007) 45 EHRR SE10, para 133.

[11] Article 6 reads: "The 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."

[12] Para 5.9. The Court, however, does not answer the question as to whether the UN had ‘effective control’, but limits itself to the question as to whether the State of the Netherlands had ‘effective control.

[13] Case of Al-Jedda v. The United Kingdom, Application no. 27021/08, July 7, 2011, available at http://cmiskp.echr.coe.int/tkp197/view.asp?action=html&documentId=887954&portal=hbkm&source=externalbydocnumber&table=F69A27FD8FB86142BF01C1166DEA398649, para 80.

[14] Para 5.9 ff.

[15] Para 6.11.

[16] The case in point here is the widely discussed lawsuit of the association “Mothers of Srebrenica”, see Rechtbank 's-Gravenhage, 295247 / HA ZA 07-2973, Judgment, July 10, 2008, available at http://zoeken.rechtspraak.nl/resultpage.aspx?snelzoeken=true&searchtype=ljn&ljn=BD6796&u_ljn=BD6796 (District Court decision) and the Court of Appeal, 200.022.151/01, Judgment, March 30, 2010, available at www.haguejusticeportal.net/Docs/NLP/Netherlands/Mothers_of_Srebrenica_Judgment_Court_of_Appeal_30-03-2010.pdf. The case is currently before the Dutch Supreme Court.