This case arose out of the situation in Srebrenica, during the conflict in Bosnia-Herzegovina. By this point in the conflict (mid 1995) the United Nations (UN) had called on all combatants to turn Srebrenica, besieged by the Bosnian Serbs, into a ‘safe area which should be free from any armed attack or any other hostile act’. Srebrenica and environs had effectively become a Muslim enclave. The caseturns on the conduct of the battalion (Dutchbat) sent by the Dutch government in response to the UN Secretary General’s request for assistance in protecting the civilian populations.
The claimant, who was employed as an interpreter and military observer by the United Nations argued that Dutchbat and the Dutch State committed wrongful acts by offering insufficient protection to the members of his family who, right at the end of the evacuation of thousands of others, were sent from the compound into the hands of the Bosnian Serbs and never seen again. According to the claimant, the State of the Netherlands could have prevented this and is liable for the suffering that these preventable deaths have caused the claimant. The State’s defense was essentially that the actions of Dutchbat should be attributed exclusively not to the State of the Netherlands but to the United Nations, as this organization exercised operational command and control over the Dutch battalion.
In its judgment of 10 September 2008 the District Court of The Hague found in favor of the State, holding that the UN had ‘operational command and control’ and that Dutch commanders in the field had neither ‘cut across’ not ‘backed out of’ the structure of UN command. Moreover it held that European Convention on Human Rights (ECHR) was not applicable because the United Nations is not a contracting party to this convention. Nor did the citizens of Srebrenica come under the jurisdiction of the Netherlands (which is a contracting party to the ECHR) as the events that Nuhanovic represents as violations of the ECHR took place in the sovereign state of Bosnia and Herzegovina and neither the UN nor the Dutch State exercised ‘effective overall control’ over a part of the territory of that state.
However, on 5 July 2011, the Court of Appeal in The Hague reversed this decision. For more details, see our summary in the General and Bosnia cases section of this site.