Abstract
This contribution addresses the legal developments leading up to two judgments rendered by the Dutch Supreme Court and the Court of Appeal in The Hague in two parallel litigations related to the tragic events in Srebrenica. Throughout these two proceedings, the Dutch judiciary has gradually been framing, in terms of law, the relationship between the Dutch UN battalion and the events in Srebrenica. In so doing, the proceedings before the Dutch courts add to the broader debate concerning the responsibilities – and the appropriate allocation thereof – of UN peacekeeping forces and contributing states. Owing to the underlying claims and the nature of the respondents, the courts in both cases have addressed two distinct legal issues. In Mustafić/Nuhanović, acts of Dutch soldiers operating under UN flag were attributed to the Netherlands, albeit on very narrow grounds, thereby limiting the possible spin-off of the judgment with respect to other proceedings. In the last stage of the Mothers of Srebrenica litigation where the UN was alleged to be responsible for failing to prevent genocide, immunity was upheld in its most absolute form by the Dutch Supreme Court. This contribution provides an overview of the procedural history of both cases and reflects on the main reasoning of the courts and the possible ramifications thereof.
The author is Assistant Professor of Public International Law at the Erasmus School of Law of the Erasmus University Rotterdam.
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Notes
- 1.
Case Concerning the Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ICJ, Judgment of 26 February 2007 (Genocide Case) and, amongst others, Prosecutor v. Krstić, Appeals Chamber, Judgment, Case No. IT-98-33, 19 April 2004 (Krstić).
- 2.
Supreme Court of the Netherlands, Association Mothers of Srebrenica et al. v. the Netherlands and the United Nations, (10/04437, LJN: BW1999), First Division, Judgment, 13 April 2012 (Mothers of Srebrenica cassation), English translation available at http://www.asser.nl/upload/documents/20120905T111510-Supreme%20Court%20Decision%20English%2013%20April%202012.pdf. Court of Appeal in The Hague, M. c.s. v. the Netherlands, (200.020.173/01, LJN: BW9014), Civil Law Section, Judgment, 26 June 2012 (Mustafić incidental).
- 3.
ICTY, http://www.icty.org/sid/10913. (All websites last accessed 23 November 2012, unless stated otherwise).
- 4.
District Court in The Hague, H.N. v. the Netherlands, (265615/HA ZA 06-1671, LJN: BF0181), Civil Law Section, Judgment, 10 September 2008 (Nuhanović); District Court in The Hague, M.M.-M., D.M. and A.M. v. the Netherlands, (265618/HA ZA 06-1672, LJN: BF0182), Civil Law Section, Judgment, 10 September 2008 (Mustafić). English translations available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0181 and http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0182 respectively.
- 5.
Court of Appeal in The Hague, Hasan Nuhanović v. the Netherlands, (200.020.174/01, LJN: BR5388), Civil Law Section, Judgment, 5 July 2011 (Nuhanović appeal) and Court of Appeal in The Hague, Mehida Mustafić-Mujić, Damir Mustafić and Alma Mustafić v. the Netherlands, (200.020.173/01, LJN: BR5386), Civil Law Section, Judgment, 5 July 2011 (Mustafić appeal). English translations available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388 and http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 respectively.
- 6.
Nuhanović appeal, paras. 8.1-8.5.
- 7.
Mustafić incidental.
- 8.
NRC, Staat in cassatie tegen uitspraak Srebrenica-zaak (State appeals in cassation against Srebrenica-case judgment), 26 June 2012, at http://www.nrc.nl/nieuws/2012/06/26/staat-in-cassatie-tegen-uitspraak-srebrenica-zaak/.
- 9.
District Court in The Hague, Association Mothers of Srebrenica et al. v. the Netherlands and the United Nations, (2995247/HA ZA 07-2973, LJN: BD6796), Civil Law Section, Judgment in the incidental proceedings, 10 July 2008 (Mothers of Srebrenica). English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BD6796.
- 10.
Court of Appeal in The Hague, Association Mothers of Srebrenica et al. v. the Netherlands and the United Nations, (200.022.151/01, LJN: BL8979), Commerce Section, Judgment, 30 March 2010 (Mothers of Srebrenica appeal). English translation available at http://www.asser.nl/upload/documents/20120420T023804-Decision%20Court%20of%20Appeal%2030%20March%202010%20%28English%29.pdf.
- 11.
Mothers of Srebrenica cassation.
- 12.
The Guardian, Dutch cabinet resigns over Srebrenica massacre, 17 April 2002, at http://www.guardian.co.uk/world/2002/apr/17/warcrimes.andrewosborn.
- 13.
Netherlands Institute for War Documentation, Srebrenica, a ‘safe’ area – Reconstruction, background, consequences and analyses of the fall of a safe area, Report, 10 April 2002, at http://www.srebrenica.nl/Pages/OOR/23/379.bGFuZz1OTA.html.
- 14.
NRC, Staat in cassatie tegen uitspraak Srebrenica-zaak (State appeals in cassation against Srebrenica-case judgment), 26 June 2012, at http://www.nrc.nl/nieuws/2012/06/26/staat-in-cassatie-tegen-uitspraak-srebrenica-zaak/.
- 15.
For an overview of several proceedings before Serbian and Bosnian courts relating to Srebrenica, see for example http://www.asser.nl/default.aspx?site_id=36&level1=15248&level2=&level3=&textid=39956. See further ICJ, Genocide case.
- 16.
- 17.
Mustafić incidental, para. 2.1.
- 18.
- 19.
Nuhanović appeal, para. 3.1: ‘(i) the State (Franken) refused to place Muhamed Nuhanovic on the list of local personnel, (ii) the State sent Muhamed Nuhanovic and consequently Ibro Nuhanovic away from the compound’.
- 20.
Ibid., para. 6.11.
- 21.
Ibid., paras. 6.1. and 6.3.
- 22.
Ibid., paras. 5.11-5.18. See also Nollkaemper 2011, at 1150.
- 23.
Nuhanović appeal, para. 5.11.
- 24.
Ibid.
- 25.
Ibid., para. 6.2. ‘According to Nuhanovic, the State acted contrary to the following standards: articles 154, 173, 157 and 182 Act on Obligations of Bosnia and Herzegovina; articles 2, 3 and 8 ECHR and (as the Court understands: in particular) articles 6 and 7 of the ICCPR; art. 1 Genocide Convention; – common article 1 of the Geneva Conventions; the specific instruction by General Gobillard to Dutchbat [to] “take all reasonable measures to protect refugees and civilians in your care”; – the Resolution of the Security Council that ordered Dutchbat “to deter by presence”(the Court assumes this refers to: Resolution 836) and Standing Operating Procedure 206 and 208.’
- 26.
Ibid., para. 6.3, related to the relevant Dutch law, namely ‘Wet van 11 april 2001 houdende regeling van het conflictenrecht met betrekking tot verbintenissen uit onrechtmatige daad’ (Bill on Conflicts of Law in Tort), Stb 2001, 190, Art. 3(1).
- 27.
Nuhanović appeal, para. 6.20.
- 28.
Ibid., para. 6.4. The Court also looked at the European Convention on Human Rights (ECHR) and the ICCPR on the basis of their customary law status. For a commentary on the implications thereof, see Dannenbaum 2011.
- 29.
International Law Commission, Draft Articles on the Responsibility of International Organizations, Report of the International Law Commission on the Work of its Sixty-third Session, UN Doc. A/66/10, 26 April-3 June and 4 July-12 August 2011.
- 30.
Nuhanović appeal, paras. 5.7-5.8.
- 31.
Ibid., paras. 5.19-5.20.
- 32.
Ibid., para. 5.9.
- 33.
See also Nollkaemper 2011, at 1149 and 1152. A similar reasoning was applied recently by the European Court of Human Rights (ECtHR) in Nada v. Switzerland where the question was whether certain acts of Switzerland pursuant to a UN Security Council Resolution should be attributed to the state or the UN, see Nada v. Switzerland, ECtHR, No. 10593/08, 12 September 2012 (Nada). For a sharp analysis of the attribution-related issues that the Strasbourg Court faced in Nada, see Sarvarian 2012.
- 34.
Nuhanović appeal, para. 5.9. ‘The question whether the State had “effective control” over the conduct of Dutchbat which Nuhanovic considers to be the basis for his claim, must be answered in view of the circumstances of the case. This does not only imply that significance should be given to the question whether that conduct constituted the execution of a specific instruction, issued by the UN or the State, but also to the question whether, if there was no such specific instruction, the UN or the State had the power to prevent the conduct concerned. Moreover, the Court adopts as a starting point that the possibility that more than one party has ‘effective control' is generally accepted, which means that it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party. 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”. When it comes to shared responsibilities amongst states and the issue of attribution, see for example European Commission on Human Rights, Ilse Hess v. United Kingdom, No. 6231/73, Decision on Admissibility, 28 May 1975. The illustrative case concerns the detention of former “deputy Führer” Rudolf Hess in the jointly administered Allied Military Prison in Berlin. A claim was filed against the United Kingdom alleging a violation of Articles 3 and 8 European Convention on Human Rights. In this particular case it was concluded, on page 74, that the administration of the prison was “at all times quadripartite”. Ultimately, the Commission held that “the United Kingdom acts only as a partner in the joint responsibility” and that “the joint authority cannot be divided into four separate jurisdictions”.’ (Emphasis added).
- 35.
Nuhanović, para. 4.13 (emphasis added). With respect to ‘dual attribution’, see Nollkaemper 2011, para. C.
- 36.
The United Kingdom, Court of Appeal – Queen's Bench Division, Bici & Anor v. Ministry of Defence, [2004] EWHC 786 (QB), 7 April 2004.
- 37.
Ibid., para. 2.
- 38.
Nuhanović appeal, para. 6.20.
- 39.
1946 Convention on the Privileges and Immunities of the United Nations, 1 UNTS 15 (General Convention) Article II, Section 2. Article 105 of the UN Charter states in pertinent part that ‘[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes.’
- 40.
Waite and Kennedy v. Germany, ECtHR No. 26083/94, 18 February 1999, para. 63 (Waite and Kennedy).
- 41.
General Convention, preamble. See also Reinisch and Weber 2004, at 60, footnote 5.
- 42.
Ibid., Article II, Section 2. The decision on whether immunity should be waived is taken, on a case-by-case basis, by the Secretary-General who has the ‘right and the duty to waive immunity of any official in any case where, in his opinion, the immunity would impede the course of justice’, see General Convention, Article V, Sections 20 and 23.
- 43.
General Convention, Article VIII, Section 29. See also Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, ICJ, Advisory Opinion, 29 April 1999, paras. 50-61 (Cumaraswamy).
- 44.
Mothers of Srebrenica, para. 5.14 and 5.16.
- 45.
The right to access to court is implied in these documents and has been recognized by the ECtHR as implicit to Art. 6 ECHR in Waite and Kennedy, para. 50, upholding the court’s previous case law. Although ECtHR case law recognizes that these rights can be restricted by immunity, this restriction needs to pursue a legitimate aim and has to be proportionate. See, Al-Adsani v. the United Kingdom, ECtHR, No. 35763/97, 21 November 2001, paras. 52-67 (Al-Adsani).
- 46.
Mothers of Srebrenica, para. 23. The ECtHR in Waite and Kennedy ruled in para. 68 that ‘a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the [ECHR] is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention’. In two other decisions, the ECtHR and the European Court of Justice, respectively, embraced similar lines of reasoning. See, Bosphorus Hava Yollari Turizm ve Ticaret Anonim Sirketi v. Ireland, ECtHR, No. 45036/98, 30 June 2005 and Joined Cases C-402 and 415/05P, Kadi & Al Barakaat International Found. v. Council of the European Union & Commission of the European Communities [2008], ECR I-6351.
- 47.
Mothers of Srebrenica appeal, para. 4.2.
- 48.
Ibid., para. 5.2-5.5 (emphasis added).
- 49.
Ibid., para. 5.7.
- 50.
Ibid., para. 5.10.
- 51.
Ibid., para. 5.11-5.13.
- 52.
Advocate General’s advisory opinion, para. 2.12-2.16.
- 53.
Mothers of Srebrenica appeal, para. 5.11-5.13. At the UN level, various options have been considered in order to establish an organization-wide alternative mechanism, amongst others the establishment of a UN Ombudsperson.
- 54.
- 55.
Mothers of Srebrenica cassation, paras. 4.3.4-4.3.6. See also, Behrami and Behrami v. France, ECtHR, No. 71412/02, 2 May 2007.
- 56.
The existence of alternative mechanisms – or lack thereof – has been the driving force behind a developing line of reasoning used by courts and tribunals to deal with the immunity of international organizations. According to this approach, courts have jurisdiction over international organizations in the field of human rights protection as long as these organizations do not provide for a level of human rights protection equivalent to that of the legal order within which the court dealing with the case operates. This means that the validity of the immunity-defense will depend on the availability of alternative mechanisms through which disputes can be resolved i.e. human rights can be protected, see e.g. Germany, Federal Constitutional Court, Internationale Handelsgesellschaft mbH v. Einfuhr- und Vorratsstelle für Getreide und Futtermittel, 37 BVerfGE 271, 29 May 1974 in 2 Common Market Law Review 540 (Solange I); Re application of Wünsche Handelsgesellschaft, 73 BVerfGE 339, 22 October 1986 in 3 Common Market Law Review 225 (Solange II) and Brunner et al. v. The European Union Treaty, 89 BVerfGE 155, 12 October 1993 in 1 Common Market Law Review 57 (Solange III). See also Belgium, Brussels Court of Appeal, Lutchmaya v. Secrétariat général du Groupe des États d’Afrique, des Caraïbes et du Pacifique, Journal des Tribunaux 2003, 684, 4 March 2003. This line of argument was subsequently mirrored by e.g. Switzerland, Federal Supreme Court, Consortium X v. Switzerland, BGE 130 I 312, 2 July 2004 and France, Court of Cassation, La Banque Africaine de Développement v. Mr X, 04-41012, 25 January 2005.
- 57.
Ibid., para. 4.3.7.
- 58.
Ibid., paras. 4.3.8-4.3.9.
- 59.
Jurisdictional Immunities of the State (Germany v. Italy; Greece intervening), ICJ, Judgment of 3 February 2012, para. 93 (Jurisdictional immunities).
- 60.
Already with respect to the remaining leg of the Mothers of Srebrenica litigation, where the possible liability of the Netherlands is still to be determined in first instance, the Mustafić/Nuhanović reasoning will not be applicable due to the differing nature of the claims. However, the possibility of prosecuting Thom Karremans, Dutchbat commander in 1995, by the Dutch Prosecution Service has been announced as a possible adjunct effect of the ruling, see ANP, Vervolging Karremans dichterbij (Prosecution Karremans closer), 9 May 2012.
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Momirov, A. (2013). Dutch Courts and Srebrenica: Ascribing Responsibilities and Defining Legally Relevant Relationships. In: Nijman, J., Werner, W. (eds) Netherlands Yearbook of International Law 2012. Netherlands Yearbook of International Law, vol 43. T.M.C. Asser Press, The Hague, The Netherlands. https://doi.org/10.1007/978-90-6704-915-3_10
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