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Netherlands Judicial Developments

Srebrenica Continued. Dutch District Court Holds the Netherlands Liable for Cooperating with Bosnian Serbs

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References

  1. District Court of The Hague (Rechtbank Den Haag) 16 July 2014, Mothers of Srebrenica v. State of the Netherlands. The ECLI (European Case Law Identifier) number of the Dutch (and authentic) judgment is ECLI:NL:RBDHA:2014:8562. The ECLI number of the (unofficial) English translation is ECLINL:RBDHA:2014:8748, available at http://deeplink.rechtspraak.nl/uitspraak?id=ECLINL:RBDHA:2014:8748. The translation of the judgment is reproduced in the annex to this annotation.

  2. The case was brought by ten individual claimants and by the foundation Mothers of Srebrenica, a legal person which promotes the interests of approximately 6,000 surviving relatives of the Srebrenica victims.

  3. Supreme Court (Hoge Raad) 13 April 2012, ECLI:NL:HR:BW1999, NJ 2014/262; ECtHR 27 June 2013, Stichting Mothers of Srebrenica and others v. the Netherlands, Appl. No. 65542/12; NJ 2014/263, annotation N.J. Schrijver. See also the annotation by Th.M. de Boer in 60 NILR (2013) pp. 121–130.

  4. Supreme Court (Hoge Raad), State of the Netherlands v. Mustafić et al., ECLINL:HR:2013: BZ9228 (Advocate General’s advisory opinion: ECLINL:PHR:2013:BZ9228); State of the Netherlands et al. v Nuhanović, ECLINL:HR:2013:BZ9225 (Advocate General’s advisory opinion: ECLINL:PHR:2013:BZ9225). This case has been reprinted and commented upon in a previous issue of the Netherlands International Law Review (C. Ryngaert, ‘Netherlands Judicial Decisions on Public International Law — Supreme Court (Hoge Raad), State of the Netherlands v. Mustafić et al., State of the Netherlands v. Nuhanović, Judgments of 6 September 2013’, 60 NILR (2013) pp. 441–485). The judgments as well as the Advisory Opinions are in Dutch and can be found on the website of the Dutch judiciary through http://uitspraken.rechtspraak.nl using the above-mentioned ECLI numbers. The full English translations of both judgments, including the Advocate General’s Advisory Opinions can be found on the webpages of the Dutch Supreme Court at www.rechtspraak.nl/Organisatie/Hoge-Raad/Supreme-court/ (through: Summaries of some important rulings of the Supreme Court).

  5. ECtHR 7 July 2011, Al-Skeini andothers v. United Kingdom, Appl. No. 55721/07.

  6. Compare Mothers of Srebrenica, paras. 4.144 (attributing the following acts to the Netherlands: (i) Abandoning the blocking positions; (ii) Not reporting war crimes; (iii) Not providing the refugees with adequate medical care; (iv) Handing in weapons and other equipment to the Bosnian Serbs; (v) Maintaining the decision not to allow refugees into the compound during the transitional period; (vi) Separating the men from the other refugees during the evacuation; (vii) Cooperating in evacuating refugees who had sought refuge in the compound) with 4.335 (considering not wrongful: (i) Abandoning the blocking positions; (ii) Not providing adequate medical care to the refugees; (iii) Handing over weapons and other equipment to the Bosnian Serbs; (iv) Upholding the decision throughout the transition period not to allow refugees entry to the compound; (vi) Separating the male refugees from the other refugees during the evacuation, in so far as this constitutes assistance by forming a lock and guiding the refugees to the buses in turns) (sic).

  7. The Court observed in passing that under Art. 48 DARIO ‘the same act and/or acts might be attributed to both the State and the UN under what is called “dual attribution”’ (para. 4.34), thereby confirming the earlier (somewhat controversial) holding of the Supreme Court in the said cases. Supreme Court, Mustafić, supra n. 4, para. 3.9.4.

  8. T. Dannenbaum, ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’, 51 Harvard ILJ (2010) p. 114; K.M. Larsen, ‘Attribution of Conduct in Peace Operations: the “Ultimate Authority and Control” Test’, 19 EJIL (2008) pp. 509, 523; A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, 8 HRLR (2008) pp. 151, 166 (‘An act committed outside the scope of the international mandate of the operation or outside its chain of command is performed in a national capacity’).

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  9. See Dannenbaum, supra n. 8, p. 114.

  10. This may be explained, at least in part, by the arguments advanced by the claimants, which indeed appear to have focused on Dutchbat’s ultra vires acts.

  11. ECtHR 2 May 2007, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, Appl. Nos. 71412/01 and 78166/01. It is true that also in Behrami the Court did consider that the concepts are ‘interdependent’ (para. 69), but it held that in this specific case the question of the ‘compatibility ratione personae’ was more relevant than the jurisdictional question.

  12. ECtHR 7 July 2011, Al-Jedda v. United Kingdom, Appl. No. 27021/08, holding in para. 86 under the heading ‘jurisdiction’ ‘that the internment of the applicant was attributable to the United Kingdom and that during his internment the applicant fell within the jurisdiction of the United Kingdom for the purposes of Article 1 of the Convention’. The fact that the Court took the view that the question of attribution formed part of the question of jurisdiction pursuant to Art. 1 ECHR may be explained by the arguments raised by the UK (see briefly para. 60).

  13. Al-Skeini, supra n. 5, para. 135: ‘[T]he Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government [and] where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State …’

  14. Mustafić, supra n. 4, para. 3.17.

  15. Al-Skeini, supra n. 5, para. 149.

  16. Ibid.

  17. Namely the legal principles (sic) implicit in Arts. 2 and 3 ECHR and Art. 6 ICCPR, which, according to the Court of Appeal of The Hague, qualify as rules (sic) of customary international law. and which have universal operation and are binding on the State. This legal framework which was applied by the Court of Appeal was uncontested on appeal in cassation. Mustafić, supra n. 4, para. 3.15.

  18. See Nuhanović and Mustafić, supra n. 4, para. 6.3.

  19. Art. 10:159 of the Dutch Civil Code indeed provides that Dutch law applies to ‘obligations flowing from the exercise of Dutch public authority’ (‘op verbintenissen voortvloeiend uit de uitoefening van Nederlands openbaar gezag’). It is observed that such acts do not fall within the scope of the so-called Rome II Regulation (Regulation (EC) No. 864/2007 of the European Parliament and the Council of 11 July 2007, on the law applicable to non-contractual obligations, OJ 2007, L 199/40), which provides in Art. 1(1) that the Regulation shall not apply to ‘the liability of the State for acts and omissions in the exercise of State authority (acta iure imperii)’. Accordingly, the Dutch legislator’s decision that acta jure imperii should be assessed according to Dutch law was a discretionary one that did not find its legal basis in the Rome II Regulation.

  20. Still, one may argue that the provision only refers to the exercise of public authority in the Netherlands, as a result of which damage occurs abroad, e. g., where a Dutch financial services authority, because of inadequate supervision, causes damage abroad. Under the conflict rule of Art. 4(1) of the Rome II Regulation, the law of the State where the damage occurs would normally apply, a result which the Dutch legislator wanted to avoid. It is not clear, however, whether, when adopting Art. 10:159 of the Dutch Civil Code, the legislator also had the situation of Dutch military operations acting and causing damage abroad in mind.

  21. Oddly, these two last sentences in the translation of the judgment do not feature in the original Dutch (and authentic) text; arguably this omission was by mistake and was not deliberate.

  22. The Courts must apply the rules of private international law ex officio/proprio motu (currently codified in Art. 10:2 Dutch Civil Code).

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  1. Cedric Ryngaert
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Ryngaert, C. Netherlands Judicial Developments. Neth Int Law Rev 61, 365–454 (2014). https://doi.org/10.1017/S0165070X14001284

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