7 September 2013
Responsibility of the Netherlands for the conduct of Dutchbat: overview of the Supreme Court decision
On 6 September 2013, the Dutch Supreme Court confirmed that the Netherlands was responsible in relation to the death of three Bosnians in Srebrenica. Finding no ground for cassation, it upheld the 2011 decisions of the Court of Appeal of The Hague, concluding the last stage of proceedings in the important cases of Nuhanović and Mustafić. These cases are remarkable in that a remedy is finally provided to some victims, but also because they comport a number of important findings for the debate on the shared responsibility of States and international organizations for the conduct of peacekeepers. Notably, the Supreme Court unequivocally recognizes the possibility of multiple attribution, notably under the test of effective control (para 3.11.2).
For those not familiar with the cases, their specific factual circumstances must be recalled. The cases of Nuhanović and Mustafić are based on a limited claim that the Dutch contingent to UNPROFOR (Dutchbat) wrongfully forced a few individuals to leave a compound where they had sought refuge. Following the capture of the enclave of Srebrenica in July 1995, about 32 000 civilians took refuge in and around the nearby industrial compound where Dutchbat was stationed. The Dutch government and UNPROFOR commanders rapidly agreed to evacuate the compound and withdraw forces, and Dutchbat commander Karremans met with Mladic to attempt to negotiate the safe evacuation of the refugees. Refugees started being evacuated by buses of the Bosnian-Serb army, and it quickly became clear that refugees, specially able-bodied men, were being murdered. Nonetheless, Muhamed Nuhanović, Ibro Nuhanovic and Rizo Mustafić were forced to leave and died. Relatives of these three individuals brought two almost identical claims before Dutch courts to upheld the responsibility of the Dutch State for the wrongful removal by Dutchbat.
In 2008, the District Court rejected the claims on the ground that the alleged conducts were attributable to the UN alone. In 2011, the Court of Appeal ruled in favor of the victims, finding the State responsible on the basis of effective control (see here). The Dutch State, which has always maintained that the UN should be responsible for the conduct of Dutchbat, brought the cases to cassation. In these landmark decisions, the Dutch Supreme Court confirmed the responsibility of the State for the conduct of forces engaged in peacekeeping operations.
In previous instances, victims maintained that their claim, including the issue of attribution, was to be decided under Bosnian law (applicable through Dutch private international law). Here, victims did not challenge the finding that attribution had to be decided under international law, thus the Supreme Court proceeded on the assumption that ‘the question of attribution should be answered solely in accordance with the rules of international law‘ and pointed the ILC Articles on the Responsibility of States (DARS) and the ILC Articles on the Responsibility of International Organizations (DARIO) as relevant instruments (paras 3.6.2, 3.7).
The Court rejected the State’s submission that ‘Dutchbat’s conduct should, in principle, always be attributed to the United Nations’ (para 3.10.1) under Article 6 DARIO. It rightly considered that, even if Dutchbat was a UN organ during the time of the mission, it did not cease being an organ of the Netherlands, which – as any State contributing troops to a military operation – retained ‘organic command‘ (that is, disciplinary powers and criminal jurisdiction) over its troops (para 3.10.2). Referring extensively to the ILC commentaries, the Supreme Court confirmed that Article 7 DARIO is the relevant rule for the attribution of the conduct of peacekeepers.
On the question of multiple attribution, the State submitted that ‘international law excludes the possibility [...] that both the United Nations and the State had effective control’ and inter alia suggested that multiple attribution of the same conduct was not possible in the ILC framework. The Supreme Court dismissed this claim as an ‘incorrect interpretation of the law’ (para 3.11.2). It pointed out that, according to the ILC Commentaries, ‘articles 6-9 DARIO do not necessarily mean that conduct must be exclusively attributed to an international organization – thereby resulting in the exclusive responsibility of the international organization – but instead leave open the possibility of conduct being attributed to an international organization and a State, which would then result in dual attribution to the international organization and the State concerned‘, and added that ‘Article 48(1) DARIO therefore expressly leaves open the possibility of more than one State or organization being held responsible for the consequences of an internationally wrongful act’ (para 3.9.4).
Further, the Supreme Court upheld the interpretation that, to exercise effective control, ‘it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently’ (para 3.11.3), and confirmed that during the transitional period of withdrawal where the Stare was closely involved, ‘not only the United Nations but also the Dutch government in The Hague had control over Dutchbat and also actually exercised this in practice‘ (para 3.12.2). By these decisions, the Supreme Court impotantly confirmed that a State exercising some degree of effective control cannot hide behind the UN when it comes to responsibility for the conduct its contingent.
The Court of Appeal had held the conduct wrongful on the basis of alternatively Bosnian torts law or international law (art 2 and 3 ECHR, art 6 and 7 ICCPR). Under Dutch law, the Supreme Court cannot review ‘in the cassation proceedings the correctness of these rulings of the Court of Appeal in so far as they are based on application of the domestic law of Bosnia and Herzegovina’. In its decisions, the Supreme Court could therefore confirm the wrongfulness of the conduct on the sufficient basis of Bosnian law (para 3.15.5).
Nonetheless, the Court addressed the State’s submission that the ECHR and ICCPR were not applicable extraterritoriality. It took the opportunity to ‘observe, by way of obiter dictum’ that the Netherlands derived competence in Srebrenica from the Status of Force Agreement concluded with Bosnia and Herzegovina, and therefore exercised ‘jurisdiction within the meaning of article 1 ECHR in the compound‘ (para 3.17.3).
The Court powerfully concluded by asserting that courts should not refrain from holding a State responsible on account that it was engaged in a peacekeeping operation. It observed: ‘far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent‘ (para 3.18.3).
With its clear stance on multiple attribution, effective control, and judicial review, it is expected that the Supreme Court ruling will have some impact on future cases of responsibility in military operations before domestic courts and the ECtHR.