By Tobias Thienel

My co-blogger Otto has a post at the blog of the Peace Palace Library, announcing and discussing the English version of the Srebrenica judgments in the Court of Appeal in The Hague. The two judgment, which are nearly identical, are available here; Otto’s post explains the reasoning of the Court of Appeal, as well as that of the court below (which was overruled).

I will now take the opportunity to offer a very brief comparison between the Dutch case and the treatment of the attribution issue by the European Court of Human Rights in Al-Jedda v United Kingdom (GC). As will be recalled, Al-Jedda concerned the attribution of measures of internment in Iraq to the UN or to the armed forces of the UK, whereas the Srebrenica cases in The Hague were about liability for the failure of Dutch peace-keeping forces to protect Bosnian civilians from the massacre in Srebrenica in 1995.

The European Court resolved the issue as follows:

The acts of the British forces in Iraq were held to be attributable to the UK, not to the UN. This was – roughly – because the British and American missions in Iraq had already been there before the UN had become involved. Also, the UN resolutions on Iraq appeared to recognise that it was not the UN that was (legally speaking) acting on the ground in Iraq. Moreover, the UN had actually opposed some of the relevant measures, suggesting that those measures were not actually theirs.

In so holding, the European Court gave a somewhat ambivalent treatment to its own – much criticised – case of Behrami and Behrami v France and Saramati v France, Germany and Norway. The Grand Chamber decision in that case was cited, and the Court in Al-Jedda used the formula of ‘authority and control’ that the Behrami court had preferred to the (true) test of ‘effective control’. However, the Court in Al-Jedda also – somewhat cryptically – noted that the ‘effective control’ test had been common ground in the proceedings before the House of Lords, and so applied that test as well (paras 84, 85).

The Dutch court also decided in favour of attribution to the sending state. However, its reasoning was somewhat different, both in its starting point and in its scope. As Otto recalls in his post, the Court of Appeal accepted on the law that an act could be attributed both to the sending state and to the UN. It therefore did not have to decide whether the UN had not exercised effective control of the Bosnian mission, but it only decided whether the Netherlands had had such control. The question was not either the UN or the Netherlands; rather, the ultimate decision affirmed the effective control of the Dutch government, without deciding whether the UN had also had effective control.

This reading of the law meant that the Dutch court had to consider only the indicia of Dutch ‘effective control’. In an exercise of judicial restraint, the responsibility of the UN was not touched upon. This approach seems particularly appropriate for a domestic court, which even more than a European international court is justified in avoiding issues that are not necessarily before it and to which its authority does not extend.

More controversially, the Dutch court declined to follow Behrami and Saramati (its judgment came before that in Al-Jedda). It applied the ‘effective control’ test rather than that of ‘ultimate authority and control’ devised in Behrami, principally on the basis of reports by the ILC and academic support. Also, the court expressly distinguished Behrami on the basis that the UN mission in Srebrenica had practically come to an end as soon as Srebrenica had fallen to the Bosnian Serbs (para 5.11).

In a sense, then, the Dutch court in the Srebrenica cases and the ECHR in Al-Jedda approached Behrami from different sides: In the Dutch/Bosnian case, the UN mission was already over, which meant that the effective control of the sending state was revived, whereas in Al-Jedda, the mission had begun before the involvement of the UN, which meant that the UN would not have acquired effective control.

One wonders, incidentally, why the Dutch court has chosen to give judgment two days before the ECHR  was set to consider the attribution issue in Al-Jedda. But however that may be, the Dutch cases make a valuable contribution to international law. It is to be hoped that the judgments will be published and discussed as they deserve.