By Otto Spijkers
Yesterday, the District Court in The Hague published two judgments relating to Srebrenica and the responsibility of the Netherlands for the acts of ‘Dutchbat’, the Dutch UNPROFOR peacekeepers stationed there at the time of the genocide in 1995. The two cases, which are almost identical, are M. M.-M., D.M and A.M. (Mustafic) versus the State of the Netherlands (case no. 265618) and H.N. (Hasan Nuhanovic) versus the State of the Netherlands (case no. 265615), both judgments of 10 September 2008.
Mustafic was an electrician working for Dutchbat, who was killed during the fall of Srebrenica. Nuhanovic was an interpreter for Dutchbat; his parents and younger brother were also present in the enclave, and it is presumed that they were killed. In both cases, the surviving relatives claimed the Netherlands did not do enough to protect those presumably killed by the Bosnian-Serbs.
The two cases were essentially about ‘attribution.’ The main issue was whether the acts of Dutchbat should be attributed to the United Nations or to the Dutch State. The Dutch Court decided the acts should be attributed to the United Nations, and since the UN was not a party to the proceedings, that was the end of the case. As I mentioned in a previous post called ‘The immunity of the United Nations according to a district judge in The Hague‘, in another case also relating to the same genocide and the same peacekeepers, the plaintiffs did attempt to involve the UN in the proceedings, but that failed because the Organization successfully relied on its immunity.
The Dutch Court believed that the acts of Dutchbat should be attributed to the UN, unless the Netherlands ‘cut across the United Nations command structure.’ The Court refers here to the possibility that Dutchbat was ordered by the Dutch State to ignore UN orders, or that the Dutch peacekeepers were under the exclusive command of the Netherlands. That was not the case here, and thus the acts could be attributed solely to the UN.
These are the most interesting paragraphs of Mustafic (as mentioned above, the Nuhanovic case is almost identical, so there is no need to quote from both judgments here):
4.7 The court will now address whether the State can be held liable for a breach of contract or wrongful act committed by Dutchbat. The State’s first defence was the claim that the actions by Dutchbat must be attributed exclusively to the United Nations, and therefore not (also) to the State. If this defence is successful, the State’s liability for Dutchbat’s actions cannot be based on either legal ground, so that no opinion is needed on whether the claimants submitted or produced sufficient evidence to prove the existence of an agreement creating an obligation with [M.].
4.8 The State’s primary defence must be assessed according to standards of international public law, for the parties agree that the Dutch troops in Srebrenica were charged with the implementation of an order by the UN Security Council. The Dutchbat mandate was based on a Security Council resolution ensuing from chapter VII of the UN Charter. If the mandate offers no scope for particular action, or if this leads to action beyond existing powers (‘ultra vires’ action), this does not mean that attribution should occur according to rules of national law. The latter is only the case if mere personal behaviour of troops ‘off-duty’ is concerned, or when agreements of a private-law nature are concerned which are subject to indigenous (in this case: Bosnian) law. However, neither is the case here. On the contrary, the claimants reproach Dutchbat that it failed to fulfil its primary public duty of protecting the civilian population. Therefore, not just national law is applicable. It is not important that according to the claimants the asserted failure to act in their case should not just be considered a wrongful act, but also an attributable shortcoming. Always, it will have to be assessed first according to the standards of international law which actor is / or actors are liable on an international level: the United Nations or the State.
4.9 The court will now address whether the State is liable for the actions of Dutchbat pursuant to the standards of international public law. First, under 4.10, the international-law consequences of supplying armed forces to an international organization such as the United Nations will be dealt with. In 4.11 the question will be addressed to what extent in the case of Dutchbat this is a matter of supplying to the United Nations, and 4.12 will discuss the claim that the conduct with which Dutchbat is reproached can be limited to powers that were not transferred. In 4.13 an interim conclusion is presented about the defence of attribution. 4.14 then discusses whether exclusive attribution to the United Nations is compatible with international obligations (whether or not ensuing from international conventions) the Netherlands are bound by, including those pursuant to the European Convention on Human Rights. 4.15 deals with the issue whether gross negligence committed by Dutchbat can lead to attribution to the State. Finally, 4.16 goes into the question whether the State cut across the UN command structure, and by doing so undermined the actual basis for attribution of Dutchbat’s conduct to the United Nations. The conclusion regarding the State’s primary defence follows under 4.17.
4.10 If a public body of state A or (another) person or entity with public status (according
to the law of state A) is made available to state B in order to implement aspects of the authoritative power of state B, then the actions of that body, person or entity are considered as actions of state B. This rule, considered international common law, is part of the articles accepted by the International Law Commission (ILC) under the auspices of the United Nations concerning the liability of states. According to this rule the attribution should concern acting with the consent, on the authority and ‘under direction and control’ of the other state and for its purposes.
This rule of attribution also applies to the armed forces deployed by a state in order to assist another state, provided that they are placed under the ‘command and control’ of that other state. In accordance with the existing international practice and the ‘draft articles’ of the ILC concerning the liability of international organizations, the court applies this rule by means of analogy to the attribution of the actions of armed forces made available by states to the United Nations.(23) The court therefore considers incorrect the claimants’ assertion that the making available of Dutchbat to the United Nations can have no legal consequences under international law for the citizens of Bosnia-Herzegovina.
4.11 In view of the exclusive responsibility of the UN Security Council for maintaining international peace and security, participation in a UN peacekeeping operation on the basis of chapter VII of the Charter implies that the ‘operational command and control’ over the troops made available is transferred to the UN. This transfer does not include, or at least not necessarily, the personnel matters of the troops and the material logistics of the deployed detachment, nor the decision about whether or not to retreat (‘full command’, in the Netherlands the supreme command with which the government is invested constitutionally). If transfer is subject to further restrictions then express reservations must be made. The claimants have not submitted anything in this respect.
On the other hand, they do invoke the ‘Standing Operating Procedures’ applying to UNPROFOR and the specific instruction given by Gobillard on July 11, 1995, which could only have pertained to Dutchbat if this battalion ranked within the UN command structure. Their challenge, that the Netherlands did not transfer ‘operational command and control’ in the context of the UN mission in Bosnia-Herzegovina, will therefore not be addressed.
4.12 [M.] was not deployed by the Netherlands. The reproach that Dutchbat offered
inadequate protection to [M.] has no bearing on personnel matters reserved to the Netherlands. Neither does it pertain to the power reserved to the Netherlands to decide whether to withdraw Dutchbat from the authority of the United Nations, for [M.] was not part of Dutchbat, but of the local staff. Moreover, the Netherlands’ ultimate right to withdraw Dutchbat from Bosnia-Herzegovina should be distinguished from the right at issue here to decide about the evacuation of UNPROFOR units from Srebrenica, which was up to the United Nations. All this means that the acts or omissions Dutchbat is reproached for should be assessed as actions of a contingent of troops made available to the United Nations for the benefit of the UNPROFOR mission.
4.13 To the conclusion that the reprehended acts of Dutchbat should be assessed as those of an UNPROFOR contingent the court attaches the conclusion, with reference to the legal framework for assessment given under 4.8 and 4.10, that these acts and omissions should be attributed strictly, as a matter of principle, to the United Nations. The claimants argued that this principle in their case does not prejudice attribution to the State. The court will address the possible exceptions put forward by them under 4.14, 4.15 and 4.16.
4.14.1 The claimants’ assertion, phrased as a general rule, that in the event of violations of standards committed in the execution of powers of control and command transferred to the United Nations, it should still be tested whether the State fulfilled its obligations under the ECHR, the ICCPR, the Genocide Convention and conventions pertaining to international humanitarian law to which the Netherlands is a party, does not hold. When in the execution of powers that are no longer the State’s standards are violated then the point of departure must be that those violations cannot be attributed to the State. The same is true when fundamental standards are involved. The question whether obligations from the aforesaid conventions should prevail over the obligations that the State is subject to pursuant to the UN Charter, including the obligation of article 25 concerning the acceptance and implementation of binding decisions by the Security Council is not an issue here, for the making available of troops to the United Nations for a particular mission, as is the case here, is a nonobligatory act. The problem of possibly conflicting contractual obligations ensuing from conventions is therefore not under discussion. The ECtHR jurisprudence relating to this on the question whether an international organization to which sovereignty has been transferred offers equal protection of human rights as the ECHR (24) is irrelevant.
4.14.2 Without detracting from the considerations under 4.14.1 the court will address the claimants’ position under the ECHR, for this convention has a special position amongst the international conventions that the Netherlands is a party to, amongst other things because of the application of the right of complaint of individuals.
The claimants argue that Dutchbat’s actions should be tested against the ECHR. This opinion is supported by rulings of the ECtHR of May 31, 2007 in the cases of A. Behrami and B. Behrami vs. France and Saramati vs. France, Germany and Norway (25), in which actions by citizens of Kosovo were not allowed because the conduct of foreign troops present there was attributable to the United Nations (inadmissibility ‘ratione personae’). Without attribution to a signatory of a treaty, of course no violation of an obligation under a treaty could be established. The complaints by A. Behrami, B. Behrami and Saramati did not stand up due to article 34 of the ECHR, in which the right of complaint of individuals is linked to claimed violations by signatory states.
In deciding the ‘Behrami’ and ‘Saramati’ cases the ECtHR did not address the question whether the citizens of Kosovo, a territory of which the international-law status has been controversial since the falling apart of the former Yugoslavia, were subject to the jurisdiction of the contracting parties to the ECHR. The ECtHR did establish, however, that the international community (in this case NATO and the United Nations) had not only assumed military tasks in Kosovo, but also legislative, executive and judiciary (government) tasks. This was not so in the UNPROFOR mission.
The events regarded as violations of the ECHR by the claimants occurred in the sovereign state of Bosnia-Herzegovina. Neither the United Nations nor the State had ‘effective overall control’ over part of that state’s territory. Dutchbat was in Bosnia-Herzegovina with the agreement of the lawful government of that country. The comparison implied by the claimants to the presence of Turkey in northern Cyprus and that of Russia in Transdnjestria (Dniester Moldavian Republic) does not hold. Although the compound enjoyed diplomatic protection by the United Nations, the area was not an extraterritorial pocket.
The applicability of the ECHR in the case of [M.] fails already, in the court’s opinion, on the ground of article 1 ECHR, in which the scope of the convention is limited to those who come under the jurisdiction of a high contracting party. The term jurisdiction in this article should, according to an ECtHR ruling of December 19, 2001 in the case of Bankovic et al. v. Belgium and sixteen other high contracting parties (26), be interpreted as an essentially territorial concept. In this ruling complaints by citizens of the Federal Republic of Yugoslavia (Serbia and Montenegro) on airborne attacks in their country were disallowed because they were carried out outside the territory of those contracting parties (inadmissibility ‘ratione loci’). Later, the ECtHR adopted the same approach in the case of Issa et al. v. Turkey (27) . In this case the ECtHR ruled that for the finding that the violations of the convention in the north of Iraq (that were the subject of the complaint) came under the jurisdiction of Turkey it was insufficient that large-scale Turkish military operations took place in the area at the time.
4.15 With their factual assertions the claimants want to demonstrate that the members of Dutchbat have seriously defaulted and that there was insufficient supervision within Dutchbat on compliance with fundamental standards. On those grounds, according to the claimants, the State remains liable. Contrary to the claimants’ suggestion, however, the rule of attribution explained in 4.10 is not set aside if their complaints are declared sound. The consequence of attribution to the United Nations is that even gross negligence or serious failure of supervision on the part of the forces made available to the UN must in principle be attributed exclusively to this organization. In the context of making available troops by member states the United Nations may, however, agree that in the event of gross negligence the state deploying the troops is liable toward the United Nations.(28) The term gross negligence may by extension also include violations of human rights or international humanitarian law. It is also conceivable that on the UN’s proposal a stipulation is agreed in which the state deploying the troops assumes third-party liability in the event of such violations.
No submissions were made on possible exceptions to this rule of exclusive attribution, however, so that the court assumes none occurred. Attribution of acts and omissions by Dutchbat to the United Nations therefore excludes attribution of the same conduct to the State.
4.16.1 The court will now address the question whether the State cut across the United Nations command structure. 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 constitutes 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.
4.16.2 In the final report of the Parliamentary Committee of Inquiry on Srebrenica three different moments are mentioned when the Dutch Government, represented by Voorhoeve, affected the commanding of Dutchbat.(29) Two of them relate to the preambles to the fall of Srebrenica. The third moment was discussed above under 4.6.
4.16.3 The claimants based their claim of the State’s cutting across the UN command structure mainly on Nicolai’s double role. In this context they argue as follows.
Because in these knife-edge days in July 1995 the United Nations did not function (properly) anymore, the State took over again. Dutch policy and UN policy became separate matters. At the time Nicolai also received instructions from the Netherlands, which he carried out. Karremans had omitted to inform Nicolai about the number of men in the compound. On the basis of this deficient information Nicolai gave orders to co-operate with the Bosnian Serbs on the deportation of the Muslim refugees. No permission was given for this by a higher-ranking UN commander; understandably so, because within the UN organization the evacuation of refugees is a matter for the ‘United Nations High Commissioner for Refugees’ (UNHCR). In his first meeting with Mladic on July 11, 1995 Karremans said he spoke on behalf of Nicolai and the Dutch authorities. The next morning Karremans on behalf of the Dutch Ministry of Defence offered Mladic assistance by his troops in the evacuation, which can be construed, still according to the claimants, as facilitating deportation.
4.16.4 The State argued with regard to this that Nicolai’s duty as a liaison officer just entailed passing information on to the Dutch Government. It occurs more often that the UN in peacekeeping operations places militaries of the same nationality as the executive detachments in the command structure in order to leave intact lines of communication as much as possible. Dutchbat’s departure from Srebrenica balances between the powers transferred to the UN and those retained by the State, for the State remained responsible for logistic matters in connection with the mission. The assertion that the United Nations were not involved in the evacuation of the refugees is wholly incorrect, according to the State.
4.16.5 There are insufficient grounds for the point of view that Dutchbat by assisting in the evacuation of the citizens of Srebrenica obeyed an order given by the State which should be considered as an infringement of the UN command structure, for even if Nicolai ordered the evacuation of the civilians this does not mean that he did so strictly or for the most part on the authority of the Netherlands. What Nicolai stated as a witness to this court, i.e. that Voorhoeve on July 11, 1995 in a telephone conversation “agreed” that the citizens of Srebrenica who had fled would be evacuated, rather indicates that the UN structure of command was respected. At most, parallel instructions were issued. This does not detract from the fact that, according to the same statement given by Nicolai, Voorhoeve, contrary to UN policies, thus provided political cover for assisting ethnic cleansing, for Nicolai also stated that the basic decision to evacuate came from Sarajevo, so from Gobillard. Nicolai made the same statement to the Parliamentary Committee of Inquiry on Srebrenica. (30)
Moreover, Voorhoeve’s approval put forward by Nicolai strictly referred to the basic resolution to evacuate, and not to the conditions under which this should take place. Karremans was aware of this approval, considering what he said to Mladic. There is no evidence whatsoever that the State gave any instructions as to the manner of evacuation. On the contrary, Nicolai stated during his provisional examination as a witness that as soon as it became clear the Serbs intended to take charge of the evacuation of the refugees themselves – and the evacuation was not going to be organized and implemented by the United Nations as was assumed originally – “The Hague” worried about the men’s fate and was on the phone to say that care should be taken to see to it that the men were under no circumstances treated as a separate group (cf also 4.6 of this ruling).
On the basis of all this the court establishes that there can be no matter of any actions taken in contravention of UN policies initiated or approved by the State. In view of the criteria formulated in 4.16.1 for the assessment of the asserted cutting across the UN structure of command, the court concludes that during the evacuation of the Muslim population the factual basis for attribution of Dutchbat actions to the United Nations was fully in place.
4.16.6 It should be recognized that the circumstances in the compound, due to lack of food and medical facilities and with high temperatures were desperate at the time. Nevertheless, the court considers, needless to say, that there are good arguments in support of the claim that the passive attitude of Dutchbat toward the separate deportation on July 12 and 13, 1995 of the able-bodied men by the Bosnian Serbs was not in keeping with the specific instruction to protect civilians and refugees in the altered circumstances to the utmost, an instruction Karremans received from Gobillard – so from the UN structure of command – on July 11, 1995. This is of no avail to the claimants, however, because the acts and omissions of Dutchbat during the evacuation should be considered as those of the United Nations.
4.17 From the considerations presented in 4.8 through 4.16 it must be concluded that the reprehended Dutchbat actions must be attributed exclusively to the United Nations, so that the State’s primary defence succeeds. This means that the State cannot be held responsible for any breach of contract or wrongful act committed by Dutchbat. The court does not get to the furnishing of proof referred to in 4.4.3. As follows from 4.6 of this ruling, neither is the State liable for wrongful action taken by those in charge of the armed forces or members of National Government. This means that the claim must be denied.