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.

 

 

 

 

 

 

 

 

 

 

 

 

On International Law, Military Intervention in Syria and Complexity: Seán Butler IRC PhD candidate

Welcoming Seán Butler, IRC PhD candidate at UCC Faculty of Law

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Peacekeeping EmblemMilitary intervention in Syria, in the form of a bombing campaign conducted by Western powers, is a likely event in the coming weeks. With the UK no longer participating due a defeated motion in the House of Commons last week, action will most likely be undertaken by the US, for which President Obama will seek Congressional approval next week, and France. After two and a half years of international inaction in Syria, this new impetus for involvement in the conflict is a result of a chemical weapon attack that occurred in the countryside surrounding Damascus on 21 August, in which somewhere between 400 and 1400 people were killed. There is still a good deal of controversy over whether the attack was committed by forces loyal to the Assad regime or by a rebel group, although the US claims it has evidence that strongly points to the government as the culprits.

What is missing from the above paragraph from an international law perspective is UN Security Council authorisation. The UN Charter is very clear on the issue of the use of force in international relations: it may only be used in individual or collective self-defence (Article 51), or if authorised by the Security Council to “maintain or restore international peace and security”. States are not permitted to use military power to unilaterally enforce another state’s obligations under international norms or treaties (for a discussion of the possible need for such an addition to international law, see Pierre-Marie Dupuy (2012), “Back to the Future of a Multilateral Dimension of the Law of State Responsibility for Breaches of ‘Obligations Owed to the International Community as a Whole’”, 23(4) European Journal of International Law 1059-1069).

Contrary to some media reports, the ‘Responsibility to Protect’ doctrine does not offer a viable avenue for engagement, as the version endorsed by the 2005 World Summit Outcome Document only enjoins action under the Security Council umbrella (the original 2001 version proposed by the International Commission on Intervention and State Sovereignty does briefly speak of ‘alternative’ avenues to the Security Council, but this does not reflect customary international law). Such an authorisation is not likely given that Russia and China have previously vetoed three draft Resolutions on Syria before the Council, due to political and economic ties to the Assad regime and the fallout from NATO exceeding its Security Council mandate to overthrow the Gaddafi regime in Libya in 2011 (as discussed in my previous contribution to this blog).

The use of chemical weapons does not change the legal landscape in Syria, which leads to the question of why the attack has moved the Western powers to forcefully intervene in the conflict whereas more than 100,000 deaths previously did not. The most likely explanation is that the Obama administration is seeking to deter future uses of chemical weapons both specifically by the Assad regime and more generally by increasing the cost of using such weapons. While this is a noble gesture when taken in isolation, it is morally gruesome when viewed in the light of the many apparently acceptable deaths by ‘conventional’ weaponry in the war and normatively dangerous when seen in the context of its blatant disregard for international law. Such a policy also hints that any intervention will be very limited, with no real attempt to influence the material outcome of the conflict.

While the moral problems of the Western approach to the conflict are perhaps obvious, the impact of the legal problems may require further elaboration. After all, to quote the late jurist Antonio Cassese (speaking on NATO’s ‘illegal but legitimate’ intervention in Kosovo in 1999), ‘should one remain silent and inactive only because the existing body of international law proves incapable of remedying such a situation?’ What is the value in upholding a law that prevents the international community from acting to allay suffering or punish a regime willing to commit atrocities upon its own people?

It is obvious that the Security Council is a highly flawed institution that often fails to act when it is needed most. However, it needs to be viewed as ultimately an arena of political compromise rather than a strictly legal entity. Its composition, in particular its five permanent members and their respective vetoes, stems from a recognition that the sphere of international relations is dominated by a small group of powerful states, between whom a balance of power is necessary to maintain. It must be remembered that the Council’s primary mandate is the maintenance of peace rather than the protection of human rights. In this rarefied air of power politics, international law acts as a language of negotiation, a delineation of what is permissible and desirable. It seeks to map the progression of international consensus with regards to the communal good.

The restrictions on the use of force are designed to ensure its use for the benefit of the international community rather than any individual state’s self-interest. What that ‘communal good’ is should not be conflated with a narrow Western conception of it. While we may abhor the protection of state sovereignty at the expense of human rights, many in the developing world see sovereignty as a crucial bulwark against the onslaught of Western imperialism. Syria is an immensely hard case in this regard, and it is hard to accept the deaths of thousands of people when the West could do ‘something’ about it. What constitutes that ‘something’ is problematic, however, and we are naïve if we believe that Western military intervention will automatically improve the situation.

The Russian and Chinese block on legal action under the Security Council may be representative of self-interest, but it also represents a deep scepticism about what military action can do to improve the situation in Syria. The civil war in Syria is an interlocking series of messy conflicts involving political, ethnic, religious and wider regional interests. It cannot be bombed into a solution. Unilateral military action in Syria not only represents a misguided attempt at ‘doing something’ to deal with the conflict, but disregards the notion that there are conceptions of the communal good beyond what Western leaders narrowly perceive it to be. As such, the victims are likely to be not only the people of Syria, but faith in international law as a means by which that good can be realised.