UN peacekeeping - state responsibility - draft articles on international responsibility of international organizations - dual attribution - effective control - European Convention on Human Rights - International Covenant on Civil and Political Rights.

Author:Zgonec-Rozej, Misa

UN peacekeeping--state responsibility--draft articles on international responsibility of international organizations-- dual attribution--effective control--European Convention on Human Rights--International Covenant on Civil and Political Rights

NETHERLANDS v. NUHANOVIC. Case No. 12/03324. At http://www.rechtspraak.nl/Organisatie/ Hoge-Raad/OverDeHogeRaad/publicaties/Documents/12%2003324.pdf.

Supreme Court of the Netherlands, September 6, 2013.

NETHERLANDS v. MUSTAFIC-MUJIC Case No. 12/03329. At http://www.rechtspraak.nl/Organisatie/ Hoge-Raad/OverDeHogeRaad/publicaties/Documents/12%2003329.pdf.

Supreme Court of the Netherlands, September 6, 2013.

In two virtually identical cases concerning the actions of United Nations peacekeepers during the 1995 Srebrenica genocide, Netherlands v. Nuhanovic and Netherlands v. Mustafic-Mujic, (1) decided on September 6, 2013, the Dutch Supreme Court (Court) held the government of the Netherlands responsible for the deaths of three men killed by Bosnian Serb forces after the Dutch battalion (Dutchbat) of the peacekeeping mission expelled them from the UN compound in Potocari on July 13, 1995. In so doing, the Court adopted a "dual attribution" approach, finding it possible for both the Netherlands and the United Nations to have effective control over the same wrongful conduct (para. 3.11.3). Dutchbat's refusal to evacuate the victims was attributed by the Court to the Netherlands because its government had exercised control over the Dutch troops in the compound (paras. 3.12.2-3.13). The Court also held that Dutchbat's conduct constituted a violation of the right to life and the prohibition of inhuman 1 treatment under the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the International Covenant on Civil and Political Rights (ICCPR) (2) (para. 3.17.3).

The two cases concerned events in Srebrenica, the town in eastern Bosnia and Herzegovina that was "ethnically cleansed" by Bosnian Serb forces in July 1995. As a result, between seven thousand and eight thousand Bosnian Muslim men were massacred by Bosnian Serb forces and more than twenty thousand civilians were expelled from the area. The Bosnian Serbs had targeted Srebrenica in 1992, in a campaign to seize control of territory in eastern Bosnia and Herzegovina. In 1993, the UN Security Council designated the besieged Bosnian Muslim enclave of Srebrenica a "safe area" under UN protection and instructed Bosnian Serb forces to withdraw from it. (3) The Netherlands had contributed Dutchbat to the UN peacekeeping mission, the United Nations Protection Force (UNPROFOR), which was stationed in the area. In the spring of 1995, Radovan Karadzic, president of the self-declared autonomous Bosnian Republika Srpska, instructed his military forces to "create an unbearable situation of total insecurity with no hope of further survival or life for the inhabitants of Srebrenica." (4) That summer, Bosnian Serb forces led by Gen. Ratko Mladic launched an offensive on Srebrenica, causing thousands of refugees to flee and to seek protection at the UN compound in the nearby village of Potocari, where Dutchbat (comprising about six hundred Dutch peacekeepers) was located. Dutchbat allowed about five thousand of these refugees to enter the compound, but a far larger number was compelled to stay outside the village (para. 3.2).

On July 11, 1995, the enclave fell as Srebrenica was taken by force by the Bosnian Serb army. Subsequently, the commander of the UN Protection Force and the Dutch government agreed to evacuate Dutchbat, together with the refugees (para. 3.2). In negotiations about the evacuation of refugees held between the Dutchbat commander Ft. Col. Thomas Karremans and General Mladic, the latter agreed that Karremans could take Dutchbat's local personnel along. Dutchbat then drew up a list of approximately thirty such persons (id.). In the following days, Bosnian Serb forces removed all the refugees who had remained outside the compound. Women and children were mostly deported, but able-bodied men were taken to execution sites to be killed. While they were being removed, the Dutchbat troops received reports that the Bosnian Serbs were committing crimes against the refugees, in particular the men (id).

The first case was brought on behalf of Hasan Nuhanovic, an interpreter employed by the United Nations at the Dutchbat compound. Nuhanovic had been issued a UN pass and was listed among the local personnel entitled to be evacuated with Dutchbat. His father, mother, and brother, who also sought protection in the compound, were forced by Dutchbat to leave because they were not on the list. At the last minute, Nuhanovic's father was given...

To continue reading