Emerging Voices: Responsibility of the Netherlands for the Genocide in Srebrenica–The Nuhanović and Mothers of Srebrenica Cases Compared

[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.

The Mothers of Srebrenica judgment did not add much to this legal argumentation. The Dutch District Court also relied on Article 7 DARIO, without providing much clarification or commentary (para. 4.33). As Kirsten Boon pointed out in her post, the District Court interpreted effective control as requiring “the actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined” (4.46). Besides applying the effective control criterion, the District Court also referred to command and control, and made some unconvincing remarks about ultra vires acts. In view of the Dutch District Court,

“If a military force’s command and control over operational implementation of the mandate is transferred to the UN and said military force then goes on to act beyond the authority given it by the UN or on its own initiative acts against the instructions of the UN said military force acts ultra vires, i.e. beyond its legal power or authority. Such action is attributable to the State supplying the troops because the State has a say over the mechanisms underlying said ultra vires actions, selection, training and the preparations for the mission of the troops placed at the disposal of the UN” (para 4.57).

I think this only confuses people, inter alia because Article 8 DARIO suggests that the UN can be held responsible even if the conduct of UN peacekeepers contravenes the UN’s instructions. So perhaps it is better to stick to the effective control criterion. Anyways, the District Court concluded that the cooperation by Dutchbat in the evacuation of the refugees who had sought their refuge in the compound itself could be attributed to the Netherlands. What played a key role in this decision was the fact that

“The previously normal situation in which a state puts its troops to work at the disposal of and under the orders of the UN during a peacekeeping operation changed substantially when Srebrenica fell at the end of the afternoon of July 11th 1995. After that a period of transition was entered into in which the State had a say in the actions of Dutchbat when providing humanitarian assistance to and preparing the evacuation of the refugees from the mini safe area” (para. 4.80).

Wrongfulness

When assessing the wrongfulness of the acts attributable to the Netherlands, the Dutch Supreme Court in Nuhanović situated itself primarily in the domestic legal order of Bosnia Herzegovina – the rules of private international law require that the Court applies the lex loci delicti commissi, and thus Bosnian and not Dutch private law is applicable. Nuhanović had argued that the Netherlands had committed a wrongful act (tort) by not making every possible effort to avoid the death of his two relatives. The existence of such an obligation in the legal order of Bosnia Herzegovina could be based on domestic provisions of private (tort) law, but also on international law, as international law has direct effect within the Bosnian legal order. The most relevant international obligation is the State’s responsibility to guarantee to all within its jurisdiction the enjoyment of the right to life. This human right is codified in Article 6 of the International Covenant on Civil and Political Rights (ICCPR), and Article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHRM). Bosnia became a party to the former treaty on 1 September 1993, and on 12 July 2002 the latter treaty entered into force for Bosnia.

In the Mothers of Srebrenica case, the District Court had a completely different view. It held that the rules of private international law prescribe that, when a State exercises sovereign powers, the law of that State applies to wrongful acts committed there. In other words, “acta jure imperii should be assessed according to the law of the State that exercised said authority” (para. 4.167). It thus held Dutch law applicable to the events in the compound. But Dutch constitutional law (article 93 of the Dutch Constitution) also gives direct effect to norms of international treaty law that are “sufficiently precise as to the right it confers or the obligation it imposes on subjects so that in the national system of laws they can operate without question as objective law” (para. 4.148). This was the case for the above-mentioned human rights provisions – but not for the obligation to prevent genocide under the Genocide Convention, which was applicable only between Convention states themselves (para. 4.164) – and thus the District Court in the Mothers case could assess the wrongfulness on the basis of the same international law referred to by the Dutch Supreme Court in Nuhanović. But when it comes to determining the compensation, and especially when settling the amount of immaterial damage, it might make a big difference whether Bosnian (in the case of Nuhanović) or Dutch (Mothers) private law is applicable (see para. 4.172).

In view of the Supreme Court in Nuhanović, Bosnian tort law alone could suffice to establish the wrongfulness of the acts. Nonetheless, as an “obiter dictum,” the Court wished to say something about the applicability of international human rights law to the situation. The Supreme Court held that the international human rights provisions mentioned may indeed be invoked against the Netherlands, because the acts concerned did fall within the jurisdiction of the Netherlands in the sense of Article 1 ECHR and Article 2(1) ICCPR. The Supreme Court, relying on the Al-Skeini judgment of the ECHR, which was about the killing of Iraqi nationals by the UK occupying military forces in Iraq in 2003-2004, noted that the jurisdiction of a party to the European Convention on Human Rights extends, in exceptional circumstances, also to areas outside its own territory.

When determining whether the acts of Dutchbat fell within the Dutch “human rights jurisdiction,” the Supreme Court looked closely at the formal legal arrangements and at the facts on the ground. It implicitly distinguished a de jure and de facto basis of extraterritorial jurisdiction. The Netherlands formally (de jure) had jurisdiction because the territorial entity, the State of Bosnia-Herzegovina, had basically surrendered its competence to govern in the area to the United Nations Protection Force (UNPROFOR). Clearly, UNPROFOR cannot be equated with the State of the Netherlands, but considering the Supreme Court’s answer to the attribution question (see above), this was nonetheless relevant. The Netherlands also had de facto jurisdiction, because an examination of the facts had shown that it was not impossible for the Netherlands to exercise jurisdiction through Dutchbat, and prevent the human rights violations from happening. It could have done so, but it did not.

In the Mothers of Srebrenica case, the Dutch District Court also held that the Netherlands exercised effective control over the compound, but not the area outside the compound. This is explained as follows:

“The compound was a fenced-off area in which Dutchbat had the say and over which the UN after the fall of Srebrenica exercised almost no actual say any more. In addition we have established the fact that other than the mini safe area the Bosnian Serbs respected this area and left it untroubled after the fall of Srebrenica” (para. 4.160).

The wrongful act in the Mothers of Srebrenica case thus consisted primarily in the assistance provided by Dutchbat in the evacuation of those men that had taken refuge on the compound itself. Of this group, the men were separated from the women, and taken away by the Bosnian Serbs. This deportation commenced in the afternoon of 13 July 1995, and by that time Dutchbat knew or ought to have known of what was going to happen to these men. In order to avoid breaching the human right to life, Dutchbat should have kept this select group of men at the compound for a little longer. In view of the Court, the Bosnian Serbs would not have attacked the compound itself.

Conclusion and policy implications

What to make of these judgments? Dick Berlijn, a former Royal Netherlands Air Force general, had an interesting response. He said: “compare it with a failed rescue attempt of someone who is drowning in the canal. Nobody will consider the person, who carried out the failed rescue attempt, as the person responsible for the death of the drowned person.” There is some truth to this. Why should the Netherlands pay compensation to the victims? What about the responsibility of people standing on the edge of the canal, watching the person drown without doing anything (that is most other States in the world? And what about the people that did the actual killing?

Especially in the Mothers of Srebrenica case, few people will notice the nuances: that the Netherlands is not held responsible for the fall of Srebrenica, and it is not held responsible for the death of the great majority of the victims. And many experts will point out that the circumstances were extraordinary, and that this case will thus not set a precedent. And being held responsible is not the same as being “guilty.” This question of guilt might be settled by the ICTY – also locatrf in The Hague – in the trial of Radovan Karadžić. Nonetheless, this case will be interpreted by the public at large as a case in which the Netherlands is held responsible for the consequences of a failed UN peacekeeping mission. Such a judgment will, of course, scare off potential troop contributing States. The UN has tried to prevent this by accepting all legal responsibility for acts of UN peacekeepers. But this the Courts – and the ILC – do not accept; they instead look at who has effective control over the relevant acts. And if the Mothers of Srebrenica case has shown one thing, it is this: if the UN wants to protect its troop contributing States from legal proceedings, it should provide victims with a legal remedy, and not rely on its immunity all the time. Because then the victims turn to the troop contributing State.