District Court of The Hague holds State of the Netherlands liable for Srebrenica massacre

On 16 July 2014, in the case of Mothers of Srebrenica v. State of the Netherlands, the District Court of The Hague held the State of the Netherlands liable for damages incurred by relatives of victims of the Srebrenica massacre resulting from the cooperation of Dutchbat – the Dutch battalion of the United Nations forces responsible for the safe area around the Bosnian town of Srebrenica – in the deportation of male Muslim refugees from Dutchbat’s compound by the Bosnian Serbs on 13 July 1995. Most of these refugees were subsequently killed by Bosnian Serb forces.This case had initially also been brought against the United Nations (UN), but Dutch courts, up to the Supreme Court, as well as the European Court of Human Rights, had upheld the immunity of the UN – after which only the case against the State of the Netherlands continued.

Mothers of Srebrenica should be distinguished from a similar, though narrower, case in which the Dutch Supreme Court, on 6 September 2013, issued a declaratory ruling that the Netherlands was responsible for the damage suffered by the relatives of a Bosnian electrician (Mustafic) who worked as a local employee for Dutchbat, and who was killed by the Bosnian Serbs, and for damages suffered by an interpreter who worked as a UN employee for Dutchbat and whose father and brother (Nuhanovic) also after eviction from the Dutchbat compound were killed (State of the Netherlands v Mustafic et al.,and theAdvocate General’s advisory opinion; State of the Netherlands et al. v Nuhanovic, and the Advocate General’s advisory opinion; this case has been reprinted and commented upon by Ryngaert, 60 Neth. Int’l L.R. (2013) pp. 441-485). In Mustafic and Nuhanovic, the successive courts did not consider the liability of the Netherlands vis-à-vis the refugees in the compound or in the mini safe area created just outside the compound after the fall of Srebrenica. The more wide-ranging case of Mothers of Srebrenica did exactly that.

Mothers of Srebrenica is an important case in several respects. The Court attributed a number of acts carried out in the framework of a UN military operation to the troop-contributing nation on the basis of the ‘effective control’ standard laid down in Article 7 of the Draft Articles on the Responsibility of International Organizations (DARIO). Furthermore, it gave (limited) extraterritorial application to international human rights law in accordance with the Al Skeinijudgment of the European Court of Human Rights (ECtHR), and determined the law of the troop-contributing nation to be the applicable tort law in light of principles of private international law. In this post, I will only address the question of attribution.

The Court attributed to the Netherlands a number of actions carried out by Dutchbat in the Srebrenica area, while eventually only considering wrongful its failure to report war crimes and its cooperation with Bosnian Serb Forces in evacuating refugees who had sought refuge in the compound (compare Mothers of Srebrenica,paras. 4.144). What is of interest to us is on what grounds the Court attributed Dutchbat’s actions to the Netherlands.

The Court set out by holding that the criterion to attribute acts carried out by a UN troop-contributing State to that State, is whether the State, rather than (just) the UN, had effective control over the acts. The Court applied in this respect Article 7 DARIO, as the Dutch courts had done earlier in Mustafic and Nuhanovic (para. 4.33), defining ‘effective control’ as “actual say or ‘factual control’” (para. 4.34). The Court observed in passing that under Article 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 said cases (Mustafic, para. 3.9.4.).  In doing so, the Court in any event endorsed the validity of the effective control standard as the criterion to apportion responsibility between member States and the UN in UN military operations. The question remains, however, how the effective control standard should be precisely operationalized. The leading technique the Court used in this respect was to assess whether or not Dutchbat’s acts were ultra vires of the orders given by the UN. Only if, in the Court’s view, these acts were ultra vires, then Dutchbat’s acts would be attributed to the Netherlands (possibly alongside the UN; paras. 4.57-4.60).

It is noted that ultra vires is not addressed in Article 7 DARIO, but only in Article 8 DARIO, which governs attribution to the organization of conduct of an organization’s organ or agent even when exceeding the authority of that organ or agent. Articles 7 and 8 remain silent on the question of whether a troop-contributing State’s ultra vires acts are per se attributable to that State rather than (only) to the UN.  That said, ultra vires acts have been considered in the literature (literature which is not cited by the Court for that matter) as among the acts that could be considered as being carried out under the effective controlof the troop-contributing State rather than the UN, as the UN supposedly does not possess any prevention mechanism in this respect (see 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 Harv. Int’l L.J. (2010) p. 114; K.M. Larsen, ‘Attribution of Conduct in Peace Operations: the “Ultimate Authority and Control” Test’, 19 Euro J.Int’l L. (2008) pp. 509, 523; A. Sari, ‘Jurisdiction and International Responsibility in Peace Support Operations: The Behrami and Saramati Cases’, 8 Hum.Ri.L.R. (2008) pp.151, 166, stating that “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”).

It appears defensible for the Court to use the ultra vires character of acts for purposes of attributing such acts to the State. However, whilst doing so, the Court should remain cautious as to not overlook other scenarios that could lead to the establishment of attribution. These may include acts conducted pursuant to authorized discretion by the national force commander, who, when exercising this discretion, should prevent wrongful acts (see Dannenbaum, p. 114). It seems as if the Court has done just this, by devoting excessive attention to the execution – ultra vires or not – of UN General Gobilliard’s order to Dutchbat to protect refugees ‘in their care’ (para. 2.37b), defined as those refugees who found themselves in the ‘mini safe area’ around Dutchbat’s compound (paras. 4.87-4.90) (which could 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).  Acts carried out by Dutchbat that were unrelated to the mini safe area or were taken before the so-called ‘transitional period’, i.e., the period during which Dutchbat was preparing to withdraw (para. 4.85), were considered as not being carried out under the effective control of the Netherlands (para. 4.87). As a result, the Netherlands was held not to have effective control over Dutchbatters’ alleged advice to Bosnian Muslim men at a crossroads in Srebrenica to flee into the woods, their failure to sound the general alarm about the flight of the male refugees into the woods, and even the closing of a hole in the compound fence through which refugees could enter (4.93-4.115).

Obviously, someone needs to have had effective control over these acts: if it was not the Netherlands then logically it was the UN. It is not readily clear, however, whether all these acts give effect to a specific UN mandate. In the confusion reigning at the time, also before the start of the transitional period, it is well possible that these acts were discretionary, improvised operational decisions that should be attributed to the Netherlands (and possibly to the UN).  The range of relevant attributable acts could thus be much wider, and consequently also the breadth of the responsibility of the Netherlands for wrongful acts – at least potentially, subject to the victims falling within the human rights jurisdiction of the State, and wrongful activity actually being established.

The Hague District Court’s judgment in Mothers of Srebrenica is currently under appeal, and may well be overruled by higher courts. Even if the judgment rests, or is said to rest, on the earlier decisions of  the Court of Appeals and the Supreme Court in the related Mustafic and Nuhanovic decisions, it is hardly certain that these courts will confirm the interpretation given to them in what is after all a much broader case, involving not just a handful but thousands of victims. It is arguable that in attributing acts to Dutchbat, and excluding victims in the vicinity of the Dutchbat compound from the human rights jurisdiction of the Netherlands, the District Court has erred too much on the side of caution. What is undeniable, however, is that the District Court has given further impetus to the development of accountability principles where UN peace operations go wrong. The judgment notably puts on notice UN troops which actively cooperate with militia committing international crimes, or fail to report such crimes.