Dutch Supreme Court ruling: Responsibility for Three Civilian Deaths at Srebrenica

Anna Marie Brennan

(Government of Ireland PhD candidate at UCC Law)

 On Friday, the Supreme Court of the Netherlands ruled that the Dutch state, whose troops retreated from the U.N. safe-zone of Srebrenica during a Bosnian Serb attack, is responsible for the deaths of three Bosnian men whom the troops left behind. The three men were killed alongside thousands of Muslim men and boys at Srebrenica in the middle of July 1995. The three men had sought refuge in the compound of the Dutch battalion (Dutchbat). However, Dutchbat made the decision not to evacuate them and informed the men on 13th July 1995 that they had to leave the compound. Shortly after leaving the compound the men were killed by the Bosnian-Serb army or associated paramilitary groups.

 The Hague District Court had attributed the actions of Dutchbat entirely to the U.N. on the grounds that it had at the time “operational command and control” over the peace-keeping operation. The District Court went on further to clarify this standard of attribution:

 

If Dutchbat was instructed by the Dutch authorities to ignore UN orders or to go against them, and Dutchbat behaved in accordance with this instruction from the Netherlands, this constituted a violation of the factual basis on which the attribution to the UN rests. This then creates scope for attribution to the State. The same is true if Dutchbat to a greater or lesser extent backed out of the structure of UN command, with the agreement of those in charge in the Netherlands, and considered or shown themselves as exclusively under the command of the competent authorities of the Netherlands for that part. If, however. Dutchbat received parallel instructions from both the Dutch and UN authorities, there are insufficient grounds to deviate from the usual rule of attribution.

The Supreme Court, upholding a Court of Appeals judgement in favour of the victims’ families, was asked to re-consider whether the actions of the battalion could be attributed to the Dutch state and if so whether the battalion had acted wrongly. The Supreme Court answered in the affirmative to both questions. In particular, the Court rejected the Dutch government’s submissions that holding Dutchbat responsible for the events that occurred at Srebrenica would potentially dissuade future peace-keeping missions and also make states less willing to supply troops for such missions. The Court was particularly critical of the Dutch battalion’s actions stating that:

 

Judicial restraint in the review of Dutchbat’s conduct as advocated by the State, would mean that there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission. According to the Supreme Court, this is unacceptable. However, a court that assesses the conduct of a troop contingent in retrospect must make allowance for the fact the decision in questions were taken under great pressure in a war situation.

 Citing the International Law Commission’s Draft Articles on Responsibility of States for Internationally Wrongful Acts and Draft Articles on the Responsibility of International Organisations, the Supreme Court judgement provides an in-depth consideration of the doctrines of attribution to peace-keeping operations. At paragraph 3.8.2, the judgment upholds the Court of Appeal’s ruling that the Dutch State had “effective control” over the battalion in accordance with Article 8 of the Draft Articles on State Responsibility which it delineates as “factual control over specific conduct.” Despite the fact that the judgment refers to the commentary on the Draft Articles on the Responsibility of International Organisations, the phrasing of the judgment arguably stems from the decision of the International Court of Justice in the case Nicaragua v. United States of America.

 The Supreme Court ruled that Article 7 of the Draft Articles on the Responsibility of International Organisations was applicable to the situation. The Supreme Court also affirmed at paragraph 3.10.2 of its judgment that this was a case where the State had made troops available for the purpose of a U.N. mission and despite the fact that the U.N. had command and control of the troops, disciplinary power and criminal jurisdiction remained with the State. The Court also affirmed that International Law, in particular Article 7 of the Draft Articles on the Responsibility of International Organisations in conjunction with Article 48(1) did not rule out the possibility of dual attribution of conduct to both a state and an international organisation. Accordingly, the Court noted at paragraph 3.11.2 that “the Court of Appeal was able to leave open whether the U.N. had effective control over Dutchbat’s conduct in the early evening of 13 July 1995.” Even if the U.N. had effective control over Dutchbat’s conduct it did not necessarily mean that it was solely responsible for this conduct. In sending the three men outside the compound the Supreme Court ruled that Dutchbat and had acted wrongly towards the three men under the Law of Obligations Act of Bosnia and Herzegovina and that the State was therefore responsible for this conduct.

 Liesbeth Zegveld, who represented the victims’ families, has hailed the judgement as a legal breakthrough because it ascertains that “peacekeepers or the U.N. cannot operate in a legal vacuum, where there is no accountability or redress for victims” as had been the case until now. She further added that “[t]his says clearly that countries involved in U.N. missions can be held responsible for crimes … they are not always covered by the U.N. flag.” The ruling on Friday has brought a ten-year legal battle to an end. Two families will now receive damages from The Netherlands. Other cases could soon be brought before Dutch courts.

 

 

 

 

 

 

 

 

 

 

 

 

Protecting Civilians: The Obligations of Peacekeepers

Micheál Martin, TD, Minister for Foreign Affairs, will today launch Protecting Civilians: The Obligations of Peacekeepers by Dr Siobhán Wills (UCC Law Faculty), published by Oxford University Press. The launch will take place today, Monday 23rd March, at 7 pm in THE STAFF COMMON ROOM, Quad, North Wing, UCC. It follows the CCJHR Annual Lecture by Professor Guy Goodwin-Gill which is being held in Aras na Mac Leinn at 6pm.
Protecting Civilians: The Obligations of Peacekeepers examines the scope and nature of peacekeepers’ obligations to protect civilians from serious abuses of their human rights, such as genocide, war crimes, crimes against humanity and ethnic cleansing.
Peacekeeping and peace support operations have expanded considerably in scope and purpose, particularly over the last decade and a half. Professor Goodwin-Gill comments in his Foreward to the book that:

“the complexity and, indeed, the contradictions attaching to these initiatives are often all too apparent, as Dr Wills shows in her timely study. Alive to the issues and concerns and solidly grounded in the experience of fifty or so years of missions throughout the globe, the analysis here reveals clearly the problems and the tension that can arise between national interests, humanitarian concerns, and international law, when mandates are ill thought-out, or lacking in political commitment….

Dr Wills identifies and analyses closely the still worrying problems of the applicable law: Whether and to what extent UN operations are bound by international humanitarian law; how, if at all, rights and duties are transmitted through the legal responsibilities of troop contributing nations; how relevant or important is the consent of the State where operations take place; and what impact does human rights law have on the conduct and accountability of States and troops….

Drawing on the rich history of the present and the recent past, this study pinpoints numerous inadequacies in the mandate, objectives, and implementation of various peace support operations – inadequacies, often compounded by lack of political will and purpose, which failed to stop or to do anything to prevent, not only the atrocities in Rwanda and Srebrenica, but also the daily violence, abuse and humiliation suffered by civilians at the hands of armed forces, militias, even peacekeepers themselves.

Too often, peacekeepers have not protected the vulnerable, but have been required to look the other way, or have done so for want of clear direction. Of course, as Dr Wills explains, the nature of conflict and the type and location of combatants are forever changing, and many parties, not just non-State actors, will manoeuvre in the spaces left by ambiguity. But if the principles of the UN Charter and the underlying spirit of the law are to mean anything, then the moral and political imperative to protect civilians ought indeed to have crossed the line to legal duty. The present and continuing challenge is implementation – finding effective ways to ensure that international peacekeepers and UN operations, in all their variety, do not become abusers of those entrusted to their protection; and that any immunity from process is legitimated by openness and accountability.

This important work lays down solid foundations for that programme of action. It is essential reading for students of these critical times, it gives legal content to the rhetoric of the responsibility to protection, and it will make a substantial and positive contribution to the doctrine of peace support operations in the years to come.”

ICC Prosecutor to Charge Sudanese President?

This blog post was submitted by PhD candidate and Government of Ireland Scholar Pádraig McAuliffe, who is reading for a PhD entitled The Serious Crimes Process of East Timor in the Field of Human Rights Law under the supervision of CCJHR Co-Director, Dr. Siobhán Mullally

The Guardian, The New York Times and the BBC this morning report that the ICC Prosecutor, Luis Moreno Ocampo is to seek the arrest of the Sudanese President Omar Al-Bashir on Monday next for war crimes, crimes against humanity and genocide committed in Darfur. Currently, two Sudanese (Ali Kushayb, a leader of the Janjaweed militia, and Ahmad Harun, currently fulfilling one of the more ironic positions imaginable, that of domestic Humanitarian Affairs minister) are charged with 51 counts of war crimes and crimes against humanity, including acts of murder, persecution, torture, rape and forcible displacement. Neither has come before the Court. At a time of existential crisis for the ICC, the move can be interpreted as a bid to reassert the ongoing relevance of a body that has yet to complete a trial since establishment in 2002 after the signing of the Rome Statute in 1998. As William Schabas, the head of the Irish Centre for Human Rights at the National University of Ireland, notes: “This is a very decisive moment for the court. It has been going through a terrible period, this could revive its image and make people feel it’s a robust dynamic institution, or it could be another blow.” This note of pessimism is worth bearing in mind – the story of the ICC has been one of disappointment, disillusionment and anticlimax, most notably in the disintegration of the case against Joseph Kony and allegations by diplomats that the pursuit of arrest warrants in Uganda hampered peace negotiations.

There are justifiable fears that an indictment of Al-Bashir will impair what halting progress there has been made in calming, albeit imperfectly, the situation in Darfur. There are also fears an indictment might serve as motivation to remove international aid workers and peacekeepers in Darfur. The NY Times quotes Alex de Waal, a Sudan expert at the Social Science Research Council in New York: “Bashir is paranoid; he feels the world is out to get him. He is prone to irrational outbursts and could respond in a very aggressive way.” Indeed, peacekeepers were attacked with seven fatalities last Tuesday, while several members of Doctors Without Borders were expelled from the country last week. A charge against Al-Bashir would represent another welcome erosion of the idea of head of state immunity most notable in the prosecutions of Slobodan Milosevic and Charles Taylor. Though both were sitting heads of state at the time of indictment, there was little prospect of them being brought before the ICTY and SCSL while in power, as the Sudanese President so securely is. Milosevic and Taylor had to be removed from office domestically before being brought to justice, something there is little prospect of in Khartoum. Charges might also be welcomed as a move away from the patent absurdity of charging militia leaders and Ministers but ignoring those “conflict entrepreneurs” further up the chain who instigate or retain the capacity to restrain the violence.

Nonetheless, aside from the Kantian moral imperative to prosecute, what of the other instrumental purposes that so often animate transitional justice? Put more simply, given the patent unlikelihood of Al-Bashir being arrested and brought to The Hague any time in the foreseeable future, what good will come from charging someone who will never come before the courts and from hardening the attitude of someone who has shown a willingness to slaughter his own people and to remove international peacekeepers and aid workers whenever it becomes politic to do so? The ICC Chief Prosecutor’s attitude seems to be that it is better to light a single candle than to curse the darkness, but the candle could set fire to the negotiations that have brought peacekeepers to Darfur and restrained the butchery. It may dash what little hope of progress that remains.

Developments in the Irish Defence Forces

The Minister for Defence, Willie O’Dea, yesterday appointed Ireland’s first military judge. The position of military judge replaces the judge-advocate in defence legislation (Defence (Amendment) act 2007). At the ceremony appointing Colonel Tony Mc Court to the position, the Minister also discussed the possibility of up to 350 members of the Defence Forces going to Chad and the Central African Republic as part of the EU’s UN-mandated peacekeeping force. (SC Resolution 1778 (25 September 2007)).

Irish soldiers currently serve in a number of international peacekeeping missions and last year’s Defence (Amendment) Act 2006 ought to ensure that military personnel would have all necessary training, including international legal training, to enable their participation in overseas UN peace support operations. That Act also allows for the ordered deployment of Irish military personally in humanitarian operations necessitated by natural disasters for which personnel previously had to volunteer.