Supreme Court Decision Rendered in Dutchbat Case: the Netherlands Responsible
In a hotly anticipated decision, the Supreme Court of the Netherlands affirmed today that the Dutch State is responsible for the deaths of three men at Srebrenica. As the press release recounts, “The men had sought refuge in the compound of the Dutch battalion (Dutchbat). Dutchbat decided not to evacuate them along with the battalion and instead sent them away from the compound on 13 July 1995.” Outside the compound they were murdered by the Bosnian-Serb army or related paramilitary groups.
The decision (in english) is available here, and cites both the 2002 Articles on State Responsibility and the 2011 Articles on the Responsibility of International Organizations, and provides a detailed analysis of attribution doctrines in peacekeeping situations.
On the substance, the decision upholds the Court of Appeal’s finding that the Dutch state exercised “effective control” over Dutchbat pursuant to Art. 8 of the Articles on State Responsibility, which it defines as “factual control over specific conduct.” (Para. 3.11.3) Although the decision cites the commentary to Articles on the Responsibility of IOs for this test, the wording originates from the monumental Nicaragua decision. Moreover, confirming that Art. 7 of the Articles on the Responsibility of IOs applies (as opposed to Art. 6), the Court found that this was a situation where a State, here the Netherlands, placed troops at the disposal of a UN peace mission, and while command and control were transferred to the UN, disciplinary powers and criminal jurisdiction reman vested in the seconding State. (Para. 3.10.2). The court also finds that international law permits the possibility of dual attribution, potentially leading to shared responsibility. As a result, “the Court of Appeal was able to leave open whether the UN had effective control over Dutchbat’s conduct in the early evening of 13 July 1995.” Interestingly, this aspect of the decision does not follow a May 2013 advisory opinion by the Procurator General, analyzed by Andre Nollkaemper here.
On the question of wrongfulness, which is determined by the law of Bosnia and Herzegovina, the Court upheld the Court of Appeals reasoning, adding that if it accepted the State’s argument for judicial restraint, there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission.
I am sure I will have more to add as I parse this rich decision, but for now, a good day for international law in domestic courts.