Court: Court of Appeal The Hague -The Netherlands

Type of decision: Judgment

Date judgment: 5 July 2011

Case no.: 200.020.174/01

Area of jurisdiction: Civil Law

Claim:

– the Dutch State is liable for the damages resulting from a wrongful act towards Mr Nuhanovic’s brother Muhamed and/or father Ibro and/or mother Nasiha and/or towards himself;

– the Dutch State is liable to pay Mr Nuhanovic compensation for damages that he has suffered or will yet suffer.

Principle legal argument(s): The conduct of Dutchbat is attributable to the Dutch State and breaches both domestic Bosnian law as well as international law.

Type of reparation sought: Compensation for past and future damages.

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This case arose out of the circumstance surrounding the evacuation of refugees from Srebrenica, during the war 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 its surrounds had effectively become a Muslim enclave. The case turns on the conduct of the battalion sent by the Dutch government (Dutchbat) in response to the UN Secretary General’s request for assistance in protecting the civilian populations.

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The claimant, who was employed as an interpreter and military observer by the United Nations argued that Dutchbat, and thus 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 subsequently killed. 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 actions of the Dutch battalion not be attributed to the State of the Netherlands but rather, exclusively to the United Nations, as this organization exercised operational command and control over the Dutch battalion.

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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 any part of the territory of that state.

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However, on 5 July 2011,  the Court of Appeal in The Hague reversed this decision. It held that in respect of the specific conduct at issue, namely the evacuation of the father and brother of the claimant, the Dutch State did indeed have ‘effective control’, could have prevented the foreseeable deaths of the claimant’s father and brother, and is therefore liable for non-pecuniary damages that the applicant has suffered and will continue to suffer.  

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Attribution

The Court of Appeal observes that it is generally accepted that, if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question of who bears responsibility for specific conduct of such troops, depends on which of the two parties has “effective control” over the personnel at the actual time of commission (or omission) (para. 5.8). The Court adds  that, by now, it is also widely accepted that more than one party can have “effective control” and that this inherently means that a specific act can be attributable to more than one party (para. 5.9).

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Effective control

The Court states that, in order to establish who had effective control at the relevant time, the circumstances of the case are determinative (para. 5.9). The Court sets out to clarify the individual components of these circumstances, by raising the following questions and points:

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• Whether sending away Nuhanovic’s family members from the compound resulted from a specific instruction issued by the UN or the Dutch State;
• Whether, absent such specific instruction, the UN or the Dutch State had the power to prevent the evacuation (para.  5.9);
• The Dutch State retained control over its military personnel and retained the power to discipline them or start criminal proceedings against them. Furthermore the Dutch State preserves the power to withdraw the troops and to discontinue their participation in the mission (para. 5.10);
• The exceptional context in which the evacuation took place: On 11 July 1995, Srebrenica had fallen and it was clear that Dutchbat and/or UNPROFOR would not continue or resume the mission (para. 5.11). Whereas the UN and the Dutch Government then mutually decided on 11 July 1995 to evacuate Dutchbat together with the refugees, the Dutch ministry of Defence instructed Dutchbat not to cooperate in allowing separate treatment of the male refugees. It is the Court’s view that, had the Dutch Government ordered Dutchbat not to allow Muhamed (as well as Ibro) to leave the compound, such an order would have been executed (para. 5.18). In sum, the Netherlands had effective control by this point and was in a position to issue orders to the Dutchbat command (para. 5.18). Thus this conduct by Dutchbat was attributable to the Dutch State (para. 5.20).

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The Court then tested whether the evacuation of Muhamed, against his will, which resulted in his foreseeable death, breached domestic Bosnian law (which also applied in this case) as well as the legal principles enshrined in articles 2 and 3 European Convention of Human Rights (ECHR) and articles 6 and 7 of the International Convention on Civil and Political Rights (ICCPR) (the right to life and the prohibition of inhuman treatment respectively) – considering that these principles “… need to be considered as rules of customary international law that have universal validity and by which the State is bound” (para. 6.3).

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The Court observes that, although the UN and the Netherlands had decided to evacuate the refugees, it cannot be assumed that Dutchbat was instructed to support the evacuation of the able-bodied men that were staying at the compound, after it had become clear that, upon leaving the compound, the men ran a real risk of being killed or of being subjected to inhuman treatment by the Bosnian Serbs. Thus, it would not have been been contrary to their orders if Dutchbat had decided to suspend its (full) cooperation with the evacuation, in the face of the known risks. Dutchbat command could lawfully have refused to send Muhamed Nuhanovic (a minor) away from the compound (paras. 6.8, 6.20). His father, Ibro, was granted permission to stay in the compound – because he had been a member of the civilian committee that had held consultations with the Bosnian Serb leader, Radko Mladic. However, his death may be considered to be the result of the wrongful sending away of his teenage son, as it was foreseeable that in the circumstances at hand, Ibro would choose to stay by his son. The allegation that the State acted wrongfully towards the plaintif’s mother, Nasiha Nuhanovic, was held not to have been sufficiently substantiated (para. 6.20).

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Decision

The court rules that, on account of the wrongful act, the Dutch State is liable for damages that Nuhanovic has suffered and will yet suffer as a result of the deaths of his father and brother, Ibro and Muhamed Nuhanovic (paras. 6.20, 6.21).

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This is a landmark case in its acknowledgement of the civil liability of a state, to pay reparations to an individual claimant, in the context of that State’s involvement in a United Nations’ Peacekeeping mission. The Dutch State intends to lodge an appeal with Dutch Supreme Court. See the Appeal Court’s ruling of 6 September 2013, in this section. It is a leading case in relation to State Responsibility and the responsibility of International Organizations. It sought to disentangle the complex legal and factual relationships between the UN, States who provide forces in support of UN missions and the States whose troops were actually in the theatre of war, right at the end of a protracted conflict when the original mission had effectively failed and forces on the ground were themselves preparing to evacuate. This decision relates to the grievances of one particular claimant under a distinctive set of circumstances. It does not relate to the conduct of Dutchbat vis-à-vis the thousands of refugees that were evacuated from the Srebrenica enclave on the 12 July 1995 and in the days thereafter. Nevertheless, it is a landmark case in its acknowledgement of the civil liability of a state to pay reparations to an individual claimant in the context of that State’s involvement in a UN Peacekeeping mission.