(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.