Netherlands 'not responsible' for Srebrenica failures 10 Sep 2008
The District Court of The Hague has denied the claim brought against the Dutch State, concluding that the Dutchbat actions in 1995 must be attributed exclusively to the United Nations.

Dutchbat was a battalion of the Airborne Brigade of the Royal Netherlands Army stationed in the Srebrenica enclave from late 1993 onwards.In its much anticipated judgement of 10 September 2008, the District Court of The Hague denied the claim brought by a former UN interpreter and family of one of the victims against the State of the Netherlands. The claimants had sought to hold the Dutch State liable for its role in failing to prevent the massacre in and around Srebrenica in July 1995, in which up to 8,000 Bosnian Muslims were killed.

For its part, the Defendant had claimed that the actions of Dutchbat—a battalion of the Airborne Brigade of the Royal Netherlands Army stationed in the Srebrenica enclave from late 1993 onwards—should be attributed not to the Dutch State but exclusively to the United Nations.

Exclusive attribution to the UN

In its judgement of 10 September, the Court outlined its reasons for denying the claim that it was the Dutch State itself that was ultimately responsible.

According to the ‘rule of attribution’ as outlined in the judgement, if State ‘A’ makes one of its public bodies available to State ‘B’ in order to implement aspects of the authoritative power of State ‘B’, then the “actions of that body… are considered as actions of state B.” This rule, which was considered by the Court to be international customary law, has been accepted by the International Law Commission (ILC), under the auspices of the United Nations concerning the liability of states.

The District Court affirmed that the rule of attribution also applies to the armed forces deployed by a state, provided that they are placed under the ‘command and control’ of that other state. Considering international practice on the matter and the ILC’s draft articles on the liability of international organisations, the Court also applied this analogy to the attribution of the actions of armed forces made available to the United Nations. The Court determined that ‘operational command and control’ over the Dutchbat troops had been transferred to the UN and that the claimants had not submitted anything pointing to restrictions on this transfer of command.

“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.”

The Court clarified this by stating that in the event of ‘gross negligence’ the state deploying troops may potentially be liable towards the United Nations, but that no submissions were made on this point.

Dutchbat within the UN command structure

In assessing whether the Dutch State cut across the United Nations command structure during those “knife-edge days in July 1995”, the Court declared that if Dutchbat had been 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” that would have constituted a violation of the factual basis on which the attribution of the UN rested.

In this scenario, there would be scope for attribution to the Dutch State itself. The Court noted that this would also be true had Dutchbat “backed out of the structure of UN command, with the agreement of those in charge in the Netherlands.”

However, the Court found that there were insufficient grounds to find that the Dutchbat forces had obeyed an order given by the Dutch State (outside of the UN command structure) to assist in the evacuation of the citizens of Srebrenica.

‘Passive attitude’

Hasan Nuhanovic – a UN interpreter in Srebrenica at the time and one of the claimants in the caseAlthough the Court concluded that the “Dutchbat actions must be attributed exclusively to the United Nations,” it acknowledged that there were good arguments in support of the claim that the “passive attitude of Dutchbat” towards the deportation of the able-bodied men by the Bosnian Serbs was “not in keeping with the specific instruction to protect civilians and refugees.”

The Court went on to confirm however that this was of no avail to the claimants as the acts and omissions of Dutchbat during the evacuation should be considered as “those of the United Nations”.

In response to Wednesday’s judgement, Hasan Nuhanović – a UN interpreter in Srebrenica at the time and one of the claimants in the case, stated that it was not the inertia of the Dutchbat troops, but rather their actions in July 1995 which compelled him to embark on his six-year legal struggle. “I have repeated thousands of times that I am not here to blame Dutchbat for their passivity,” Nuhanović declared. “I am accusing them of being active - in violation of the human rights of my family and other refugees.”

The claimants have already announced that they will appeal the District Court decision.

Judgement (English translation)
Judgement (Dutch)

Page Tools
Share |