Court: Supreme Court The Hague, The Netherlands

Type of decision: Judgment

Date judgment: 6 September 2013

Case no.: 12/03324

Area of jurisdiction: Civil Law

Claim: The alleged conduct of Dutchbat –part of the UN peacekeeping mission UNPROFOR- is not attributable to the Dutch State but to the United Nations.

Principle legal argument(s): Dutchbat was placed under the command and control of the UN rendering it an organ of the latter.

Type of reparation sought: –

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This case was an appeal by the State of the Netherlands against the decision (5 July 2011 ) of the Court of Appeal in The Hague, in the case of Nuhanovic vs The State of The Netherlands. The Supreme Court had to reconsider two central questions:

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1. Could Dutchbat’s conduct be attributed to the Dutch State?
2. Was Dutchbat’s conduct wrongful?

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In its truly landmark decision of 6 september 2013, the Supreme Court of the Netherlands held that the Dutch State was responsible for the deaths of three Muslim men who were sent away from the safety of the Dutchbat compound in Potocari – within the protected Srebrenica enclave – in the very last hours before the closure of the compound and the withdrawal of the Dutch batallion from the scene. The case raised complex questions as to exactly which law should govern international troops in contexts such as these – touching upon the immunity of the UN, and raising the possibility of the sharing of responsibilities between the UN and national military units participating in UN peace-keeping missions. The Court held that in the very specific circumstances in which the facts of this case were played out, the Dutch ministeries of Defence and Foreign Affairs – and not the UN – were in effective control of their military staff on the ground, and were therefore responsible for its actions.

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The Supreme Court decided that international law was the applicable legal framework to solve the attribution issue and relied specifically on Articles 4 and 8 of the 2001 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARS) and Articles 6, 7 and 48 of the 2011 ILC Draft Articles on the Responsibility of International Organizations (DARIO).

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The Supreme Court rejected the Dutch State’s submission that Dutchbat’s conduct should be attributed exclusively to the United Nations under Art. 6 DARIO, holding that, although Dutchbat was effectively an organ of the United Nations during the time of the UNPROFOR peace-keeping mission in Bosnia Herzogovina, Dutchbat military personnel nevertheless remained under the control of the Dutch State as far as disciplinary powers and criminal jurisdiction were concerned, and thus continued to be an organ of the Dutch State.

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In order for the disputed conduct of Dutchbat be attributable to the Dutch State, the latter must have had effective control over Dutchbat.  The Supreme Court held that the criterion of factual control over specific conduct – requiring that all factual circumstances in the specific context be weighed up – had been correctly applied by the Court of Appeal. In addition, the Supreme Court states that even if the United Nations (UN) had had effective control over Dutchbat’s conduct when the disputed evacuation took place, this would not necessarily exclude shared responsibility with the UN.

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The Supreme Court confirms the Court of Appeal’s assessment of Dutchbat’s conduct on the basis of both domestic Bosnian Law and international law. The Dutch State had submitted that the Court of Appeal had erred in assessing the wrongfulness of Dutchbat’s action on the bases of international law, i.e. (violations of) the human rights treaties European Convention on Human Rights (ECHR) and the International Convention on Civil and Political Rights (ICCPR). It had argued that these treaties have no extraterritorial effect. With reference to the European Court of Human Right’s finding that, in exceptional circumstances, a Contracting State can be bound to its ECHR treaty obligations outside its territory, the Supreme Court suggests that the Dutch State, through Dutchbat, was indeed required to ensure that men, women and children on the compound were safe (para. 3.17).

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The Supreme Court dismissed the appeal, making it clear that the Dutch State must pay compensation. A compensation agreement with Mr Nuhanovic has in the meantime been reached.

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