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Attributing the Conduct of Dutchbat in Srebrenica: the 2014 Judgment of the District Court in the Mothers of Srebrenica Case

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Abstract

The question of allocating responsibility for the conduct of Duchbat in Srebrenica is one of the many legal issues raised by the tragic events of July 1995. In the judgment of 16 July 2014 in the Mothers of Srebrenica case—the last in time of a string of decisions rendered by Dutch courts on this issue—the District Court of The Hague attributed to the Netherlands a number of acts taken by Dutchbat prior and after the fall of Srebrenica. The present article aims at assessing the principles of attribution which were relied upon in this judgment. It is submitted that the District Court went too far in attributing certain acts to the sending state but was at the same time too quick in excluding the attribution of other acts. On the whole, and taking more broadly into account all the judgments relating to the massacre in Srebrenica, the impression is that, so far, Dutch courts have gone in the direction of widening the possibility of attributing to the sending state the conduct of a national contingent in peacekeeping missions. The refusal to base attribution on the status of peacekeeping forces as UN organs, the recognition that the state may have effective control even in the absence of instructions to the contingent, and the admission of the possibility of dual attribution are among the main pillars on which the position of Dutch courts rely.

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Notes

  1. District Court of The Hague (Rechtbank Den Haag) 16 July 2014, Mothers of Srebrenica et al. v. State of the Netherlands, ECLI:NL:RBDHA:2014:8562 (Dutch) and ECLI:NL:RBDHA:2014:8748 (English translation), available at http://deeplink.rechtspraak.nl/uitspraak?id=ECLI:NL:RBDHA:2014:8748. The translation of the District Court’s judgment has been reprinted in 61 NILR (2014), pp. 373–454 with an introduction and commentary by Ryngaert (2014).

  2. Court of Appeal of The Hague, Nuhanović v. Netherlands, Judgment of 5 July 2011, ECLI:NL:GHSGR:2011:BR0133, Oxford Reports on International Law in Domestic Courts 1742 (NL 2011); Supreme Court of the Netherlands (Hoge Raad) 6 September 2013, State of the Netherlands v. Mustafić et al., ECLI:NL:HR:2013:BZ9228 (advisory opinion of Advocate General Vlas: ECLI:NL:PHR:2013:BZ9228); State of the Netherlands et al. v. Nuhanović, ECLI:NL:HR:2013:BZ9225 (advisory opinion of Advocate General Vlas: ECLI:NL:PHR:2013:BZ9225), all in Dutch. The full English translations of both judgments, including the advisory opinions of the Advocate General can be found at the website of the Supreme Court at http://www.rechtspraak.nl/Organisatie/Hoge-Raad/Supreme-court/ (through: summaries of some important rulings of the Supreme Court). The English translation of the Supreme Court’s judgment in the case of Mustafić et al. was also reprinted in 60 NILR (2013), pp. 447–485, with an introduction and commentary by Ryngaert (2013).

  3. Report of the International Law Commission on the work of its sixty-third session, UN Doc. A/66/10, p. 88.

  4. UN doc. A/CN.4/637/Add.1, p. 13.

  5. See Seyersted (1961), p. 429; Sari (2012), pp. 77 et seq.; Sari and Wessel (2013), pp. 126 et seq.

  6. ECtHR, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, 2 May 2007, para. 143.

  7. UN Doc. A/CN.4/637/Add.1, p. 14.

  8. Sari (2012), pp. 82–83.

  9. Supra n. 2, para. 3.10.2.

  10. Report of the International Law Commission, supra n. 3, p. 90.

  11. The Commentary does not exclude that the conduct of an organ placed at the disposal of the organization can be attributed to the organization on the basis of the criterion set forth in Art. 6 but limits this possibility to the case when an organ of a state is fully seconded to the organization. Report of the International Law Commission, supra n. 3, p. 87. On this possibility see Jacob (2013), pp. 24–25.

  12. See advisory opinions of Advocate General Vlas, supra n. 2, para. 4.14. For the same view, see also d’Argent (2014), p. 26 (available at http://www.qil-qdi.org). For the view that the criterion set forth in Art. 7 also applies for the purposes of attributing the conduct of ‘lent’ organs to the sending state, see however Spagnolo (2014), pp. 33–41.

  13. Supra n. 1, para. 4.36.

  14. Ibid., para. 4.42.

  15. See, for instance, para. 4.66.

  16. Para. 4.57.

  17. Paras. 4.80–4.87.

  18. As the ILC noted in the introduction to the commentary to ARIO, ‘[i]n so far as provisions of the present draft articles correspond to those of the articles on State responsibility, and there are no relevant differences between organizations and States in the application of the respective provisions, reference may also be made, where appropriate, to the commentaries on the latter articles’. Report of the International Law Commission, supra n. 3, p. 70.

  19. Yearbook of the International Law Commission, 2001, Vol. Two, Part. II, p. 44: ‘The words “placed at the disposal of” in article 6 express the essential condition that must be met in order for the conduct of the organ to be regarded under international law as an act of the receiving and not of the sending State. The notion of an organ “placed at the disposal of” the receiving State is a specialized one, implying that the organ is acting with the consent, under the authority of and for the purposes of the receiving State. Not only must the organ be appointed to perform functions appertaining to the State at whose disposal it is placed, but in performing the functions entrusted to it by the beneficiary State, the organ must also act in conjunction with the machinery of that State and under its exclusive direction and control, rather than on instructions from the sending State.’

  20. It is to be noted that the Commission does not require that the lent organ be given the status of an organ of the receiving state. Whether the lent organ acquires that status or not is not relevant for the purpose of applying the criterion of attribution set forth in Art. 6 ARS. On this point, see the view expressed by the Special Rapporteur, Roberto Ago, in his Third report on state responsibility, Yearbook of the International Law Commission, 1971, Vol. Two, Part I, p. 199.

  21. See G. Gaja, ‘Second report on the responsibility of international organizations’, Yearbook of the International Law Commission, 2004, Vol. Two, Part I, p. 14.

  22. Referring to the ILC’s commentary to Art. 6, and in particular to the point where it is said that the lent organ must act under the exclusive direction and control of the receiving state, the ILC’s Special Rapporteur, Giorgio Gaja, observed that ‘[t]his point could be made more explicitly in the text, in order to provide guidance in relation to questions of attribution arising when national contingents are placed at an organization’s disposal and in similar cases’. To that end, the Special Rapporteur proposed to include the notion of ‘effective control’ directly in the text of the provision. See G. Gaja, ‘Second report’, supra n. 21, p. 14.

  23. Report of the International Law Commission, supra n. 3, p. 87.

  24. Supra n. 3, para. 4.36.

  25. Para. 4.40.

  26. Para. 4.53.

  27. Para. 4.57.

  28. Para. 4.57.

  29. Para. 4.58. For a similar view, see Dannenbaum (2010), p. 159.

  30. See Spijkers (2014). For a different view see however Ryngaert (2014), pp. 367–368. According to this author, not only acts contravening instructions from the UN should be attributed to the sending state but also ‘acts conducted pursuant to authorized discretion by the national force commander, who, when exercising this discretion, should prevent wrongful acts’. For the reasons set out in this section this view does not seem to attribute adequate relevance to the capacity in which the peacekeepers were acting when engaging in the wrongful conduct.

  31. Court of Appeal of The Hague 5 July 2011, Nuhanović v. Netherlands, ECLI:NL:GHSGR:2011:BR0133, Oxford Reports on International Law in Domestic Courts 1742 (NL 2011), para. 5.9.

  32. One possible reading is that the Court of Appeal applied the test proposed by Dannenbaum (2010), p. 141, according to which ‘“effective control,” for the purpose of apportioning liability in situations of the kind addressed by Draft Article 5 [now Article 7], is held by the entity that is best positioned to act effectively and within the law to prevent’ a breach of international obligations.

  33. Report of the International Law Commission, supra n. 3, p. 92.

  34. Supra n. 1, para. 4.85.

  35. See in particular para. 4.83.

  36. Para. 4.86 (emphasis added).

  37. Para. 4.87.

  38. See Ryngaert (2014), p. 368.

  39. Report of the International Law Commission, supra n. 3, p. 83.

  40. See however d’Argent (2014), p. 31, who holds the view that ‘Article 7 ARIO is a provision which is designed to help identify one responsible entity, not several, the very notion of effective control being exclusive rather than cumulative’. See also the position of Advocate General Vlas, according to whom ‘[u]nder article 7 DARIO the international organization has exclusive responsibility and the seconding State does not at the same time have independent responsibility on the grounds of its own acts’. Advisory opinions of Advocate General Vlas, supra n. 2, para. 4.13. For a more nuanced view see Messineo (2014), p. 85, who, while recognizing that in principle Art. 7 is an exception to multiple attribution, admits the possibility of dual attribution when peace support operations are concerned.

  41. See G. Gaja, ‘Second report’, supra n. 21, p. 14. See also Tsagourias (2011), pp. 245 et seq.

  42. UN Doc. A/CN.4/637/Add.1, p. 14.

  43. ECtHR (Grand Chamber), Al Jedda v. United Kingdom, 7 July 2011, para. 84. See Milanovic (2012), p. 136.

  44. Supra n. 2, para. 3.11.2. See also District Court of The Hague, supra n. 1, para. 4.34. The reference made by the Supreme Court and by the District Court to Art. 48 of the Articles on the Responsibility of International Organizations does not appear to be a pertinent one as Art. 48 concerns cases of joint responsibility for the same wrongful act, and not dual attribution of the same conduct. See Condorelli (2014), p. 9.

  45. See the view expressed on this issue by Condorelli (1995), p. 893; and more recently Condorelli (2014), pp. 3 et seq. See also Leck (2009), pp. 346 et seq.

  46. Significantly, the District Court of The Hague held the view that ‘the mere fact that Dutch military personnel were appointed to UNPROFOR does not mean per se that the State exercised effective control. Dutch officers worked in the UN chain of command whence operational implementation of the mandate was directed.’ Para. 4.50. It also observed that ‘[n]or does the fact that Dutch officers in the UN chain of command maintained contact with The Hague constitute grounds for assuming effective control.’ Ibid., para. 4.52. It must be noted, however, that, according to the District Court, when the state interferes with the UN chain of command by giving instructions to the troops, the resulting conduct must be attributed to the state even if ‘the instruction matches up with the immediately preceding general instruction of the UN’. Ibid., para. 4.66.

  47. See Dannenbaum (2010), pp. 184–187.

  48. Para. 4.35.

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  1. University of Macerata, Piaggia dell’Università 2, 62100, Macerata, Italy

    Paolo Palchetti

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Palchetti, P. Attributing the Conduct of Dutchbat in Srebrenica: the 2014 Judgment of the District Court in the Mothers of Srebrenica Case. Neth Int Law Rev 62, 279–294 (2015). https://doi.org/10.1007/s40802-015-0027-9

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