Supreme Court Decision Rendered in Dutchbat Case: the Netherlands Responsible

by Kristen Boon

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.

http://opiniojuris.org/2013/09/06/supreme-court-decision-srebrenica-massacre-netherlands-responsible/

7 Responses

  1. As I already wrote at the time of the Court of Appeals decision, I have a serious problem with this approach to attribution. (Otherwise, the ruling seems sensible.) Telling soldiers in a war zone that they have two bosses does not seem like a very tenable position to take, and so I would have rather that the courts had said that, as a matter of law, peacekeepers are controlled only by the UN. (Or, politically somewhat more difficultly, only controlled by the Dutch state.)

  2. The Dutch soldiers and their commander should forever hang their heads in shame for walking away from the challenge to their authority and responsibility to protect the people of this UN safe haven.  Fight and die if necessary, do your duty.

  3. Martin Holterman,
    The entity with full authority over troops would be the one responsible for their actions. Should the Director of the DPKO (Department of Peacekeeping Operations) also be held accountable (as the commanding authority) for malfeasances/inappropriate actions taken by Blue Helmets?

  4. Just to add, I think in the interest of efficiency and practicality the current situation is best. UN troops are loaned to the UN Secretariat and their respective governments explicitly reserve the right to prosecute and punish their own troops. I don’t see this as a problem with “command structure”…the soldiers do not have “two bosses”, they have one, unless and until malfeasances occur. In the meantime, those troops are placed at their disposal by member states. 
    Take away the authority for a nation to prosecute its own citizens and we’ll very likely see a hesitancy to donate troops for peacekeeping operations. It’s an issue of sovereignty, and nations tend to guard that pretty jealously. This is true in particular for the countries with the highest caiiber volunteers. The force level is only as strong as what nations are willing to provide to perform the task, and after practical limitations are considered (Iran was willing to donate several thousand very well trained troops to secure Srebrenica, for example, but it seemed imprudent to accept them at the time, escalation and all that).
    The more corrupt governments tend to be more willing to volunteer troops, not because of commitment to global peace and security but because it provides a steady supply of currency to the state coffers. 

  5. @Liz: I’m not sure whether and how you’re disagreeing with me. I’m OK with either the UN or the Dutch government being legally responsible for these troops, just not both. And should it be the UN, then that includes the entire chain of command, of course. (Except that none of them can be sued in Dutch court due to their immunity.)
     
    @Jerry: Fair enough, from a moral POV, but the law tends to be reluctant to recognise an obligation for individuals to “fight and die”.

  6. @Liz: Just saw your follow up.
    There’s no question that peacekeepers can be prosecuted by the home nations. Only in March Dutch prosecutors declined to prosecute the commander of Dutchbat, Lt.Col. Karremans, but not because they didn’t have jurisdiction. 
    The question is whether the state can be sued in tort for the – otherwise lawful – orders given and obeyed. (Or orders not given, of course.) I think the actions of Dutchbat should be attributed, for legal purposes, either to the UN or to the Dutch state, but not to both.

  7. Martin, I think that the Court was trying to avoid the outcome of cases like Saramati / Behrami where the decision to attribute conduct solely to the UN led to a finding that there was no jurisdiction ratione personae.  Here, the Court leaves open the possibility that the UN might also be responsible, but concludes that peacekeeping missions should not be treated like a shield by courts:  ‘far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent.‘ (para 3.18.3). Response…

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