[Otto Spijkers is an Assistant Professor of Public International Law at Utrecht University.]

Introduction

This post compares the recent judgment of the District Court in The Hague in the case of the “Mothers of Srebrenica” with the judgment of the Dutch Supreme Court of last year in the Nuhanović case. I will try not to repeat what Kristen Boon wrote about the case in an earlier post.

Facts

Both judgments deal with the legal responsibility of the Netherlands for the death of (some of) the Bosnian Muslims in Srebrenica in 1995. When the so-called “safe area” of Srebrenica fell into the hands of the Bosnian Serbs, the Dutch UN peacekeepers all left the area. Hasan Nuhanović was permitted to leave with them, because he had worked for the UN, but the UN peacekeepers refused to take the relatives of Hasan Nuhanović as well. Hasan’s brother and father were subsequently killed, together with thousands of other Bosnian Muslims. Most of the victims were situated outside the compound over which the Dutch peacekeepers exercised effective control. Even those Bosnian Muslims that managed to enter the compound, just before the fall of Srebrenica was a fact, were later surrendered by the Dutch peacekeepers to the Bosnian Serbs. Almost all of them were killed.

Legal Question

Nuhanović argued that the refusal of the Dutch UN peacekeepers to save his relatives constituted a wrongful act, attributable to the State of the Netherlands. The Mothers of Srebrenica argued that the refusal of the Dutch UN peacekeepers to save all Bosnian Muslims within the so-called “mini safe area” constituted a wrongful act, attributable to the Netherlands. This is the area where most people fled to after the city of Srebrenica had fallen into the hands of the Bosnian Serbs. This mini safe area consisted of the compound in Potočari and the surrounding area, where deserted factories and a bus depot were located (para. 2.35 of Mothers of Srebrenica judgment).

Attribution

In Nuhanović, The Dutch Supreme Court held that the same conduct could in principle be attributed both to the Netherlands and to the United Nations. In reaching this decision, the Court referred to Article 48 of the ILC’s Articles on the Responsibility of International Organizations (2011, DARIO). In the Mothers of Srebrenica case, the District Court reached the same conclusion (para. 4.34)

Since the UN was not party to the Nuhanović-proceedings, the Supreme Court could look only at the rights and responsibilities of the Netherlands. The Mothers of Srebrenica initially involved the UN in the proceedings as well, but the Organization effectively relied on its immunity (this led to some landmark judgments by the Dutch Supreme Court and the European Court of Human Rights), and thus the case continued without the UN. In Mothers of Srebrenica, the District Court explicitly rejected the position of the Mothers that, given the immunity of the UN, the rules on attribution should be interpreted more “broadly,” as otherwise the Dutch UN peacekeepers would be placed “above the law” (para. 4.35). At the same time, one cannot help get the feeling that it played a role.

With regard to attribution, the Supreme Court in Nuhanović based its decision primarily on Article 7 DARIO. This provision states that the conduct of an organ placed at the disposal of an international organization by a State must be considered to be the conduct of that international organization, when the organization has effective control over the conduct. The Netherlands argued that Article 6 DARIO was the relevant provision, and not Article 7. Article 6 DARIO states that the conduct of an organ of an international organization is attributable to that international organization. The argument of the State was thus that the peacekeepers were a UN organ. This is also the view of the UN itself. But the Supreme Court followed the ILC Commentary to DARIO, according to which a battalion of peacekeepers is not a UN organ, because the battalion to a certain extent still acts as an organ of the State supplying the soldiers. Important in this assessment is the fact that the troop-contributing State retains disciplinary powers and criminal jurisdiction over its peacekeepers.

Interestingly, the Dutch Supreme Court also referred to Article 8 of the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts (2001, ARS). Strictly speaking, Article 7 DARIO says nothing about the attribution of conduct of an organ placed at the disposal of an international organization by a State to that State. The Article deals exclusively with the responsibility of international organizations, such as the UN. All it says is that, if the international organization does not have effective control over the conduct of the organ, then it is not responsible for that conduct. But that does not mean that, by definition, this makes the State responsible in such cases. In theory, it could very well be that neither of the two is responsible. And so to complete the picture, the Dutch Supreme Court relied on Article 8 ARS. According to this provision, the conduct of a group of persons shall be considered an act of a State if the group is in fact acting under the effective control of that State in carrying out the conduct. This provision was meant to make it possible to attribute acts of persons not formally part of the State system to the State in exceptional circumstances.

One may wonder why the Supreme Court did not instead make use of Article 4 ARS, according to which the conduct of any State organ shall be considered an act of that State. If peacekeepers are not UN organs, then it would be logical to consider the peacekeeping force as a State organ instead. Peacekeepers are not the mercenaries, militants or bands of irregulars for which Article 8 ARS has been designed. But if we follow the Dutch Supreme Court, the peacekeepers are nobody’s organ; and whoever happens to be in effective control of them at the relevant time, is responsible for their actions.

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The recent downing of Malaysian Airlines Flight 17, apparently by an anti-aircraft missile fired from within rebel-controlled territory in the Ukraine, has raised the specter that Russia is covertly (or not so covertly) supplying arms and assistance to the pro-Russian separatists operating within eastern Ukraine. Obviously, the facts here are somewhat contested and I have no insider or independent information about the firing of the missiles. What I say here is based on news reports in The New York Times and elsewhere, and our understanding of the situation is rapidly evolving.

But let’s assume, for the sake of argument, that this story (or something similar) turns out to be true. Let’s assume that the “BUK” anti-aircraft missile system was either provided to the Ukrainian rebels by Russian operatives, or that it was stolen by the rebels from the Ukrainian military, and then operated with assistance from Russian operatives and military advisors. It seems more likely that the missile system was provided directly by Russia, but even if the rebels stole it from the Ukrainian military, it seems unlikely that the untrained militia-members would have been capable of deploying it without Russian assistance. (Again, let’s just take this as an assumption, because alternate hypotheses exist, including the contention that the militia members are trained in anti-aircraft missile deployment because they are local defectors from the Ukrainian military).

If this story is true, it reveals how important the debate is, in international jurisprudence, between competing theories of control. This might seem like an obvious point, but the current situation in the Ukraine (vis-à-vis Russian influence) may stand at precisely the fault line between “effective control” and “overall control” – the two competing doctrines of attribution in international law.

As most readers already know, the effective control test was articulated in the ICJ’s Nicaragua judgment and offers a fairly robust set of standards for attributing the actions of an armed group to a particular state, essentially requiring that the armed units are operating on the instruction, or at the direction of, the foreign state. In these circumstances, the actions of the armed group can be attributed to the foreign state.

In contrast, the ICTY in Tadic declined to follow the ICJ’s Effective Control Test, and instead formulated and applied the broader Overall Control Test. The test was originally designed to determine in Tadic whether the armed conflict was an international armed conflict or a non-international armed conflict. If the conduct was attributable to a foreign state, then the armed conflict was international in nature. Subsequently, Cassese argued (correctly) that the test was, in fact, a general test for state responsibility. The test allowed for state responsibility in situations where a foreign power helped to coordinate the actions of an organized and hierarchically structured armed group by equipping, financing, or training the paramilitary force.

The dispute between these two tests is crucial because they really do give different answers in important cases. It seems to me that the Ukrainian situation falls directly on the fault line between the overall and effective control tests. If the Effective Control test applies, then it is not clear whether the shooting down of the airliner can be directly attributed to the Russian government (although that conclusion depends on which facts are unearthed in the investigation). On the other hand, if the Overall Control test applies, then there is a plausible argument that the shooting of Flight 17 can be attributed to Russia because their operatives probably helped train and equip, and coordinate, the activities of the pro-Russian militia. The Overall Control test supports the attribution of responsibility to Russia, while the Effective Control test probably does not.

Either way, one important insight about both tests is their black-and-white nature. Instead of a spectrum of control yielding different degrees of responsibility, the tests act as an on-off switch. Either there is state responsibility or there is not; either the acts are attributed or they are not. There is no sliding scale of responsibility based on the degree of foreign involvement or entanglement in the local affairs of the militia or paramilitary organization.

A final note on a related but distinct topic. It also seems pretty clear that pro-Russian militia were acting incompetently in shooting down the plane, assuming incorrectly that they were shooting down a military aircraft. How should one understand their level of culpability here? Recklessness comes to mind as the appropriate mental state since they probably did not engage in the appropriate due diligence to distinguish between military and civilian aircraft.

Although it is unclear whether this should be treated as an international crime (killing of civilians during an armed conflict) or a domestic crime (murder), I have to say that I have never found international criminal law’s treatment of crimes of recklessness particularly satisfying. Under domestic law, reckless killings are either classified as manslaughter or as the lowest degree of murder (such as depraved indifference to human life) depending on the jurisdiction and depending on the severity of the recklessness. Domestic law therefore produces a grading of the offense based on the lower mental state. In contrast, international criminal law has no lower offense for crimes of recklessness. Unlike the distinction between murder and manslaughter, a defendant is either convicted or acquitted of the war crime of killing civilians (with nothing in between).

[Jonathan Hafetz is Associate Professor of Law at Seton Hall Law School.  He has represented several Guantanamo detainees and has filed amicus briefs in previous legal challenges to military commissions.]

On July 14, the en banc U.S. Court of Appeals for the D.C. Circuit issued its long-awaited (and deeply fractured) opinion in Al Bahlul v. United States (.pdf), addressing the scope of military commission jurisdiction over offenses—material support for terrorism, solicitation, and conspiracy—that are not crimes under international law.  In a nutshell, the D.C. Circuit vacated Bahlul’s conviction for material support and solicitation, but affirmed his conviction for conspiracy against an ex post facto challenge.  While the ruling takes material support and solicitation off the table for commission prosecutions (at least for prosecutions of current Guantanamo detainees), it does not resolve the viability of charging conspiracy as a stand-alone offense because the en banc holding is based on the application of plain error review to Bahlul’s case (due to its conclusion that Bahlul failed to preserve his ex post facto challenge below).  The decision thus leaves open the fate of conspiracy under de novo review.  By implication, it also leaves open the viability of the U.S. government’s domestic war crimes theory not only with respect to other commission cases charging conspiracy (including the ongoing prosecution of the 9/11 defendants), but also with respect to Bahlul’s other legal challenges to his conspiracy conviction, which the en banc court remanded to the original D.C. Circuit panel.

This post will examine the multiple opinions in Bahlul addressing the U.S. government’s domestic war crimes theory, which posits that the Military Commissions Act of 2006 (2006 MCA) retroactively authorizes, and that the Constitution allows, the prosecution by military commission of conduct that is not a crime under the international law of war.  (For excellent summaries of the Bahlul decision, see posts at Just Security by Steve Vladeck here and by Steve and Marty Lederman here).  The theory’s viability is central to the retroactivity arguments addressed by the en banc court as well as to the additional arguments under Article I and Article III that will be considered on remand.
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Professor Jens David Ohlin of Cornell Law School will be guest blogging with us over the next two weeks. Many readers may know Jens from his blogging at Lieber Code and from his many articles on international criminal law, the laws of war, cyberwar, and comparative criminal law, among other topics.

Jens is also the author or editor of four books, including his forthcoming The Assault on International Law (Oxford) and Targeted Killings: Law and Morality in an Asymmetrical World (Oxford 2012), for which he was a co-editor.

We are very happy to have Jens participating on Opinio Juris for the next couple of weeks and look forward to the conversation!

[François Delerue is Ph.D. researcher in International Law at the European University Institute (EUI - Florence, Italy) and visiting scholar at Columbia University (fall term 2014)]

Article 2(4) of the UN Charter was revolutionary in its extension to the explicit prohibition of the threat of force, alongside the prohibition of the use of force. No cyber operation has ever been qualified as a threat or use of force by any States or international organizations; commentators are more nuanced and some consider certain cyber operations as likely to qualify as actual uses of force (see generally: Tallinn Manual p. 45; Marco Roscini pp. 53-55; Duncan Hollis). Most of the literature applying Article 2(4) to cyber operations focuses on the use of force and, therefore, the threat of cyber force remains understudied.

In this blog post I endeavor to fill this gap by analyzing inter-state cyber operations according to the prohibition of threat of force. My main argument is that for most inter-state cyber operations the qualification as the threat of force is arguably more suitable than trying to qualify them as an actual use of force at any cost. I will develop successively the two main forms of threat of force: open threat of prohibited force and demonstration of force.

A Threat of Prohibited Cyber Force As a Prohibited Threat of Force

The International Court of Justice, in its Advisory Opinion on the Legality of the Threat or Use of Nuclear Weapons, confined the prohibition of the threat of force to the prohibition of the threat of the use of the prohibited force (para. 47). In other words, an unlawful threat is a conditional promise to resort to force in circumstances in which use of force would itself be unlawful. This form of threat of force is the most obvious one and can be implied directly from the wording of the UN Charter. Formulated by Ian Brownlie in 1963 (p. 364), this approach is nowadays the prevailing one on the threat of force.

Applied to cyber operations, a threat of cyber force will violate the prohibition of Article 2(4) only if the threatened cyber force amounts to an unlawful use of force in the same circumstances. This is the contemporary leading approach among scholars and is, for instance, the approach followed by rule 12 of the Tallinn Manual:

A cyber operation, or threatened cyber operation, constitutes an unlawful threat of force when the threatened action, if carried out, would be an unlawful use of force.

Is a general threat to resort to force enough to constitute a violation of the prohibition of Article 2(4)? The answer is unequivocally yes. Most verbal or written threats of force constitute a general threat of force, without specification on which kind of force might be use. It seems most likely that threat of force will remain mainly general, and cyber force will be one of the possible options to be used by the threatening State.

Demonstration of Cyber Force As a Prohibited Threat of Force

Demonstration of cyber force constitutes the second form of threat of force. In contrast to an open threat of force, a demonstration of force is constituted by acts instead of words performed by a State. Force may be demonstrated in many ways: notably in military acts – such as deployment of troops, manoeuvres, nuclear arms build-ups or testing – showing the readiness of a State to resort to force against another. In the literature on the threat of cyber force, demonstration of force is sometimes analyzed but remains for the most part neglected and understudied.

Most cyber operations fail to qualify as an actual use of force; however, could they constitute a demonstration of force amounting to a prohibited threat of force? I will use recent examples of cyber operations to answer this question.

Large-Scale Distributed Denial of Service Attacks As a Demonstration of Force

A distributed denial of service (DDoS) attack is a cyber attack, which aims to make a machine or network resource unavailable by flooding it with requests from compromised systems. Could such a large-scale DDoS attack amount to a demonstration of force? The answer seems to be positive under certain conditions.

In April 2007, Estonia faced violent street protests by a minority group of Russian descent objecting to the removal of World War II bronze statue of a Soviet soldier. Simultaneously, the country experienced multiple cyber operations, notably large-scale DDoS attacks on the websites and servers of private and public institutions. The Estonian government accused Russia of the cyber attacks; Russia, however, denied any involvement. As Estonia is highly connected and extremely dependent on its computer infrastructure, these cyber operations were able to paralyze a large part of the Estonian economy, media and government. Could these cyber operations constitute a use of force? Estonia explored initially the possibility to invoke Article 5 of the North Atlantic Treaty and thus to treat these cyber operations as an ‘armed attack’[1] triggering ‘the right of individual or collective self-defence’; however, this solution was quickly ruled out (see e.g. Mary E. O’Connell pp. 192-193; see also: here and here).

While neither Estonia nor other States considered those cyber operations as a use or threat of force, could these cyber operations constitute a credible threat of force? Their consequences resulted in the partial paralysis of the State, limiting the ability of the country to respond in case of military action. Moreover, they occurred in fractured relations between the targeted State and the presumed threatening State, rendering any threat of force more credible. It seems, as a result, that those cyber operations could be considered as potential preluding measures to a use of force. They could thus be considered as a demonstration of force violating the prohibition of threat of force of Article 2(4).

The Estonian example demonstrates that a large-scale DDoS attack against an Internet-dependent State could constitute a threat of force. However, not all DDoS attacks might be that easy to qualify as a demonstration of force. In the case of similar cyber operations faced by Georgia before the 2008 Russo-Georgian War, the conclusion might be more nuanced. Unlike Estonia, Georgia is not highly dependent on the Internet; therefore the consequences of cyber operations were limited and resulted mainly in the inability for the Georgian Government to access its websites and use them to communicate. As a result, the qualification of a threat of force seems difficult and probably excessive for this situation. (more…)

Your weekly selection of international law and international relations headlines from around the world:

Africa

• Suspected Islamists raided the remote northeast Nigerian town of Damboa over the weekend, shooting dead more than 40 residents and burning down houses in a familiar pattern of killing that has forced tens of thousands to flee their homes this year.
• South Sudanese rebels and government soldiers clashed in the northern town of Nasir on Sunday, adding to fears that a shaky ceasefire agreement signed in May could totally collapse.

Asia

• A US drone attack has killed at 11 people in the Pakistan’s northwestern tribal region near the border with Afghanistan, Pakistani officials said.
• The U.N. Security Council on Thursday condemned recent ballistic missile launches by North Korea describing the three rounds of Scud short-range missiles fired in June and July as a violation of council demands on Pyongyang.

Europe

• U.S. Secretary of State John Kerry laid out what he called overwhelming evidence of Russian complicity in the shooting down of Malaysia Airlines flight MH17 as international horror deepened over the fate of the victims’ remains.
• Britain’s new Foreign Secretary Philip Hammonds reiterated his position from two years ago that if Britain does not get good renegotiation, it should leave the European Union.
• A former Libyan Islamist commander who says he suffered years of torture by Muammar Gaddafi’s henchmen after British and U.S. spies handed him over to Libya will try this week to overturn a ruling blocking legal action against the British government.
• The remains of 284 victims of the Bosnian war were laid to rest on Sunday having been unearthed from what is believed to be the largest mass grave of Europe’s worst conflict since World War Two.
• Spain summoned the British ambassador to complain about Britain’s handling of an incident on Wednesday involving the Spanish Navy near the disputed territory of Gibraltar.

Middle East and Northern Africa

• Two Israeli soldiers were killed in a cross-border attack by Hamas militants on Saturday, the army said, as the Palestinian death toll from the conflict rose above 300 with no diplomatic solution in sight. 
• Italian rescuers have found 18 bodies on a boat carrying hundreds of asylum-seekers and another died while being evacuated, the ANSA news agency reports.

Americas

• Central American leaders will ask U.S. President Obama to support a regional development and security plan to stem the tide of illegal child migrants to the U.S. at a meeting next week, a Honduran minister said on Saturday.
• Pope Francis called for justice to be served in his native Argentina on Friday, the twentieth anniversary of the deadly bombing of a Buenos Aires Jewish commuity center that local courts blamed on Iran.
• The CIA station chief in Berlin who was told to leave by Germany due to new allegations of U.S. spying has now left the country, a spokesman for Germany’s foreign ministry said on Thursday.

UN/Other

• UN Secretary-General Ban Ki-moon has condemned the killing of dozens of Palestinians in the Gaza Strip by Israeli shelling as an “atrocious action” and called for an immediate end to almost two weeks of fighting.
• According to the IAEA, Iran has turned all of its enriched uranium closest to the level needed to make nuclear arms into more harmless forms.
• The U.N. Security Council is due to vote today on a resolution that would condemn the downing of a Malaysian passenger plane in Ukraine and demands that those responsible be held accountable and that armed groups don’t compromise the crash site integrity.
• The United Nations accused Islamic State fighters in Iraq of executions, rape and forced recruitment of children during a campaign to seize much of northern Iraq, part of a conflict it said has killed almost 5,600 civilians this year.
• The International Monetary Fund expects to decide within weeks on issuing the second tranche of a $17-billion bailout to Ukraine, whose economy is likely to contract by 6.5 percent this year, its Kiev mission chief said on Friday.

Announcements

• A one-day conference on the UN Migrant Workers Convention will be held at the European Inter-University Centre for Human Rights and Democratisation in Venice on Monday, 28 July. The conference, which boasts a stellar line-up of speakers, will take place in the 12^th century monastery of San Nicolò and is free and open to the public. 
• Workshop: Foreign Investment in the Services Sector. A workshop – organized by Andreas R. Ziegler and Michael Hahn (University of Lausanne), Eric de Brabandere (Grotius Centre, Leiden University) and Tarcisio Gazzini (UNIL – Foreign Services in Africa Project) – will take place on 19 September 2014 at the University of Lausanne (Switzerland) in the context of the opening of the academic year of the LLM Programme on International and European Economic and Commercial Law, and it will explore the specific problems relating to foreign direct investment in services sector and thus the overlap of International Investment Law and Trade in Services.

Twitter is abuzz with claims that Moshe Feiglin, the Deputy Speaker of the Knesset in Israel, has called for the commission of genocide against the Palestinians. Here is what he said, in relevant part:

Conquer – After the IDF completes the “softening” of the targets with its fire-power, the IDF will conquer the entire Gaza, using all the means necessary to minimize any harm to our soldiers, with no other considerations.

Elimination- The GSS and IDF will thoroughly eliminate all armed enemies from Gaza. The enemy population that is innocent of wrong-doing and separated itself from the armed terrorists will be treated in accordance with international law and will be allowed to leave. Israel will generously aid those who wish to leave.

Feiglin’s comments are vile, horrifying, and unfortunately all too common in Israel’s increasingly toxic right-wing political culture. As awful as they are, though, they do not amount to incitement to genocide, because Feiglin is advocating the forcible transfer or deportation of the Palestinians — commonly referred to as ethnic cleansing — not genocide. There are five types of genocidal acts: (1) killing members of a group; (2) causing serious bodily or mental harm to members of a group; (3) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (4) imposing measures intended to prevent births within the group; and (5) forcibly transferring children of the group to another group. The actions Feiglin advocates come closest to (3), but he makes clear that he is not advocating displacing Palestinians into a location where they could not physically survive, which would be genocide. (A pre-Genocide Convention example is the Armenian genocide, in which the Ottoman empire not only ethnically cleansed the Armenians, but drove them into the Syrian desert to die.) In short, Feiglin is advocating that Israel commit not genocide but crimes against humanity.

Feiglin is also, it’s worth noting, urging Israel to commit war crimes against the Palestinians. Here is another one of his suggestions:

Defense – Any place from which Israel or Israel’s forces were attacked will be immediately attacked with full force and no consideration for ‘human shields’ or ‘environmental damage’.

It is ICL 101 that it is a war crime to intentionally launch an attack knowing that it will — in the words of the Rome Statute — “cause incidental loss of life or injury to civilians… which would be clearly excessive in relation to the concrete and direct overall military advantage anticipated.” In making that determination, an attacker must take into account any civilian who will be incidentally killed in an attack, even one who is serving as a human shield. Two wrongs do not make a right in ICL. By urging Israel to ignore the presence of civilians, therefore, Feiglin is urging Israel to launch attacks that are highly likely to be disproportionate.

This week on Opinio Juris, we kicked off the second edition of our Emerging Voices symposium with a post by Zachary Clopton on the horizontal and vertical dimensions of international law in U.S. Courts, followed by Abel Knottnerus’ post on rule 134quater.

Julian clarified last week’s post on Taiwan and argued that “lawfare” will not deter China in the South China Sea. He also posted an obituary for William T. Burke.

Kevin gave his take on the most important issues in international criminal justice today, while Kristen commented on the Mothers of Srebrenica judgment in the Netherlands.

Chris looked at the international legal argument behind the story about the dad who claimed a kingdom for his little girl.

Finally, Jessica wrapped up the news and I listed the events and announcements.

Have a nice weekend!

[Abel S. Knottnerus is a PhD Researcher in International Law and International Relations at the University of Groningen.]

In November 2013, the Assembly of States Parties adopted Rule 134quater. Under the pressure of African States, the ASP agreed that the Trial Chamber should be able to excuse an accused from continuous presence at trial, when the accused “is mandated to fulfil extraordinary public duties at the highest national level”.

Rule 134quater

1. An accused subject to a summons to appear who is mandated to fulfill extraordinary public duties at the highest national level may submit a written request to the Trial Chamber to be excused and to be represented by counsel only; the request must specify that the accused explicitly waives the right to be present at the trial.

2. The Trial Chamber shall consider the request expeditiously and, if alternative measures are inadequate, shall grant the request where it determines that it is in the interests of justice and provided that the rights of the accused are fully ensured. The decision shall be taken with due regard to the subject matter of the specific hearings in question and is subject to review at any time.

While this amendment was welcomed by the international community – and most notably by the UK, the US and the AU – several commentators questioned its consistency with the Statute, and in particular with Articles 27.1 (“irrelevance of official capacity”) and 63.1 (“the accused shall be present during the trial”). An amendment to the Rules of Procedure and Evidence (RPE) may not extend the scope of Statute (Articles 51.4 and 51.5), but that is exactly what Rule 134quater seemed to do by deviating from the conditions that the Appeals Chamber (25 October 2013) had laid down for the Trial Chamber’s discretion to excuse an accused from continuous presence at trial. For this reason, Kevin Jon Heller predicted that the new Rule would “probably not” survive judicial review.

So what happened? Did Rule 134quater pass the scrutiny of the Court’s Judges?

Submission Prosecution

Almost immediately after the ASP, Ruto submitted an excusal request under the new Rule, which essentially said that the Trial Chamber should excuse him for as long as he would be Vice-President. Rule 134quater would allow the Chamber to excuse an accused who fulfils extraordinary public duties from all trial hearings, because it would omit a restriction to the duration of an excusal.

The Prosecution responded by questioning the consistency of this interpretation of Rule 134quater with the Statute. Remarkably, the Prosecution did not challenge the validity of the amendment, but argued that the new Rule could not “overrule the Appeals Chamber’s interpretation” (para. 30). In applying Rule 134quater, the Trial Chamber would have to respect all the conditions that the Appeals Chamber had listed, including that an excusal must be limited to what is strictly necessary.

In addition, the Prosecution claimed that Ruto’s interpretation of Rule 134quater would be inconsistent with the equal treatment principle, which is set down in Articles 27.1 and 21.3 (the Statute shall be interpreted and applied “without any adverse distinction”). If the new rule would allow an accused to skip all hearings for as long as he or she is (Deputy-) Head of State, it “would create a regime under which two accused seeking the same relief … would be treated differently, based only on official capacity” (para. 3). The Prosecution argued that Rule 134quater would only be consistent with the equal treatment principle, if the amendment would be read as emphasizing the duties of the individual instead of the office that the accused fulfils.

Finally, the excusal request would fail to distinguish Ruto’s extraordinary public duties from the “normal, day-to-day duties” that the Kenyan Vice-President has to perform. The Prosecution maintained that dealing with the aftermath of a terrorist attack (like the Westgate Mall bombing) would be an extraordinary public duty, but “opening new roads or welcoming a foreign dignitary would not be” (para. 41).

For all these reasons, the Trial Chamber would have to decline Ruto’s request for a “blanket excusal” (para. 38).  (more…)

On Wednesday, a Dutch Court handed down a hotly anticipated decision on the Mothers of Srebrenica case, finding the Dutch state responsible for the deaths of 300 people who were sheltering with Dutchbat in July 1995, when the safe haven at Srebrenica fell.  The English translation is available here.

This ruling means the relatives of those 300 Bosniaks will be entitled to compensation.  Significantly, however, The Netherlands was cleared for the deaths of the more than 7000 other victims who were in and around Srebrenica, such as those who fled to the woods nearby.

This case follows a related decision, in which the UN was found immune from process for the deaths at Srebrenica.   See the 2012 decision of the Dutch High Court here.   And a subsequent decision by the ECHR confirming the UN’s immunity.

In the present decision, the concept of effective control was central to the Court’s findings.  In para. 4.33 the Court cited the Nuhanovic decision and DARIO Art. 7, and defines effective control as “factual control” of the State over Dutchbat’s specific actions. (Later, in para. 4.46 the court suggests that effective control is “actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined.”) In Para. 4.37 the Court noted that command and control of Dutchbat was transferred from the Dutch state to the UN, which took place for the purpose of a UN peacekeeping operation based on Chapter VII of the UN Charter. The court found the Netherlands responsible for the deaths of those 300 because they were within its effective control.   See paras. 4.87 – 88.    In contrast, the 7000 who “fled to the woods”, and according to several claimants, did so on the basis of hand signals by Dutch soldiers, were not under the effective control of the Dutch state and hence not attributable to the Dutch state. The majority of those individuals then fell to Bosnian Serbs. Paras. 4.101 – 4.106.

The ruling also indicated that the Netherlands was responsible because the Dutch peacekeeping force, outnumbered by raiding Bosnian Serb forces, had handed over the same 300 Bosnian Muslim men and boys of fighting age after Gen. Ratko Mladic, commander of the forces, ordered that they be screened for war crimes. Para. 4.212. The District Court ruling said the peacekeeping force should have known that the Muslims were likely to be killed by the Serbs.

In my view, this decision will have three implications:

• First, it will be of interest to Troop Contributing Countries, in that the determination of a national court that a state is responsible for the failure to prevent an atrocity and might be found liable for wrongs committed during a peacekeeping mission, despite an overarching UN Mandate, broadens the spectre of legal liability significantly.  In this vein, it should be considered alongside the Nuhanovic decision of 2013, also rendered by the Dutch Supreme Court, in which the Netherlands was found responsible for the deaths of 3 individuals during the 1995 massacre. I blogged about this case here.   On the relationship of the Nuhanovic decision to the Mothers of Srebrenica decision, see paras. 4.10 – 4.12.

• Relatedly, it indicates the relevance of shared responsibility scenarios in international law. It develops the doctrine of attribution and related concept of effective control proposed by the ILC in the Articles on the Responsibility of IOs, and indicates that both a state and an IO can share effective control, and hence, potentially, responsibility, despite the UN’s presumptive immunity. See e.g. para. 4.45 in which the Court decides it does not need to examine whether the UN also had effective control, given the possibility of dual attribution. For magisterial treatments of this topic, see the work of the SHARES research project at ACIL, Amsterdam, run by Professor Andre Nollkaemper.   I note that I have a research interest in effective control, and have a forthcoming article on the topic to be published in the Melbourne Journal of International Law later this year.

• Third, the decision brings us back to a very hot topic: the scope of UN immunity. Questions of UN immunity are front and center these days because of the three pending cases against the UN involving the introduction of cholera in Haiti. An important distinction between the Srebrenica decisions, and the Haiti Cholera cases, however involves operational necessity.   In the Srebrenica case, courts have been clear that the decision not to evacuate some of the Bosniacs near the safe haven fell within the context of operational necessity, which is central to the Security Council’s mandate under Chapter VII. Questions of operational necessity are considered “public” matters, which do not trigger the Art. 29 obligation to provide alternative means of settlement.   The idea behind the disctinction of public / private it that immunities are meant to protect the UN from vexatious litigation. By way of contrast, operational necessity has never been raised in the Haiti Cholera cases. To see my take on this distinction see my blogs here and here.