Court: Amsterdam Court of Appeal

Type of decision: Judgment in interlocutory proceedings

Date judgment: 6 July 2000

Case no.: 759/99 SKG

Area of jurisdiction: Civil Law

Claim: –> Dutch participation in NATO airstrikes on the territory of the (former) Federal Republic of Yugoslavia constitutes a crime against peace; –> Air strikes unlawfully targeted civilian objects

Principle legal argument(s): –> Violation of Article 2(4) United Nations Charter (prohibition to use force against another state cq prohibition of non-intervention); –> Breach of Article 53 API; –> Breach of the principle of proportionality

Type of reparation sought: Compensation

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The war fought in the 1990s in the former Federal Republic of Yugoslavia (FRY) intensified on Kosovo territory in 1998 resulting in numerous civilian casualties, massive displacement of persons and a rapid deterioration in the humanitarian situation. Foreseeing a humanitarian catastrophe, the United Nations (UN) Security Council adopted Resolution 1199 on 23 September 1998 which called upon the FRY’s government to implement measures leading to a political solution. In absence of such measures, the Council would ‘consider further action and additional measures to maintain or restore peace and stability in the region.’ Notwithstanding the fact that this Resolution did not provide an explicit basis for the use of force or for lawful intervention,[1] the North Atlantic Treaty Organization (NATO) started air attacks on the former FRY, lasting from 24 March to 10 June 1999, with the participation of The Netherlands.

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Appellants are nationals of the former FRY who, in these interlocutory proceedings, claim that the Dutch State committed a crime against peace and a violated International Humanitarian Law (IHL) by participating in the NATO air bombardments for which they hold the Dutch Prime Minister and the Dutch Ministers of Foreign Affairs and Defence (defendants) personally liable. They seek compensation for the immaterial damages they suffered and are still suffering, originating from the intense stress the air bombardments caused, leading them to fear for their lives, their relatives lives and for their properties.

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Dutch participation in NATO air strikes constitutes a crime against peace in violation of Article 2(4) UN Charter

Appellants purport that the air strikes were conducted in violation of the prohibition to use force, laid down in Article 2(4) UN Charter. They also point at this provision’s underlying principles and norms regarding the respect for and protection of life, safety and property which are also reflected in customary law, human rights law and international humanitarian law. The Court however, denied direct effect of Article 2(4) UN Charter, finding that this provision cannot be invoked by individual appellants against the Dutch State directly, but only by states vis-à-vis each other in proceedings before the International Court of Justice (paras. 5.3.6-5.3.8.). Regarding the principles and legal framework put in place to safeguard life and property, the Court determined that these are not “absolute in nature” meaning that in times of armed conflict they can be derogated from (para. 5.3.18.).

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Were the air strikes unlawful?

Although Resolution 1199 did not mandate the use of force against the FRY (5.3.10), the Court concluded that in these interlocutory proceedings, it had too little factual and legal information about the applicable rules and principles of international law to determine whether the Dutch participation in the air strikes against the FRY was unlawful (5.3.15-5.3.16). Therefore, it declined to consider a violation of Article 2(4) (which again, cannot be directly invoked by an applicant) in determining the Dutch State’s or defendants’ liability.

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The defendants are state organs and can therefore only be held personally liable for an unlawful act of the Dutch State, that is due to their own fault (para. 5.3.2.). Even if the unlawfulness of the air bombardments could be established, the Court advances the view that the question of fault was not likely to arise in view of the fact that the decision to participate in the air strikes was taken with due diligence (para. 5.3.17).

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Air strikes violated International Humanitarian Law

Of particular interest for victims of war who seek to found their right to reparation on IHL, are paragraphs 5.3.19. ff of the judgment. Appellants claim that the bombardments targeted civilian objects in breach of Article 53 AP I and disrespected the principle of proportionality. In response, the Court not only concludes that it lacks sufficient information to determine whether or not violations of IHL have taken place, but also finds that it is under no obligation to do so: it emphasizes that IHL does not seek to protect persons from tensions or fears stemming from air strikes, but only to protect those with regard to whom the rules and norms have been violated in concreto. In other words, only those persons who have suffered direct personal injury, as a result of an act in violation of IHL, may invoke the rules of IHL (paras. 5.3.23, 5.3.25). In the absence of factual information about such direct personal injury the Court held that the appellants had not sufficiently demonstrated that they had suffered immaterial damages. Immaterial damages could not be made out on the basis of suffering stress and fear for life and property alone.

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The importance of this judgment lies in the fact that, in differentiating between direct and indirect victims of IHL violations, the Court appears to recognize that appellants who could demonstrate that they personally had been the victims of incidents that could be shown to have violated the humanitarian law of war, would have a right of claim against the responsible state. (The mere fact of such violations having been committed by the state would, by contrast, not be sufficient ground for an individual right to claim reparations).

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[1]  This Resolution was part of a series of Resolutions on the situation in the FRY. It was followed by Security Council Resolution 1244 of 10 June 1999 that explicitly did authorize the use of force.