On the 16th of July, the Dutch District Court delivered its judgment in the case between the Stichting ‘Mothers of Srebrenica’ and ten individual claimants against the Dutch State and the United Nations. The case dealt with the fall of Srebrenica and the consequent loss of over 7000 men who had sought refuge in the by the UN declared and ensured safe area of Srebrenica in which the Dutch battalion named ‘Dutchbat’ had its base as part of the United Nations Protection Force (UNPROFOR). In an earlier phase the UN was granted absolute immunity and for the first time the court came to deal with the actual substance of the case.
A particularly interesting part of the judgment is the decision on the attribution of particular acts to the Dutch state (as opposed to or next to attribution to the United Nations), based on Article 7 of the Draft Articles on the Responsibility of International Organizations. The Netherlands had handed over the operational command and control over their troops, but the full command – which is understood as the power to withdraw troops and responsibility over disciplinary, personnel and logistical matters – remained with the Netherlands. Even while the operational command was with the UN, conduct over which the Netherlands exercised effective control can be attributed to the Netherlands (possibly next to the UN; this is the concept of dual attribution, see art. 48 DARIO). The Court explains that the amount of Dutch personnel within the UNPROFOR organization, the direct communication between the Netherlands and Dutchbat and the many requests for detailed information by the Netherlands, did not in itself lead to the exercise of effective control.
However, the Court recognizes two cases in which conduct can be attributed to the Netherlands. The first is when the Netherlands acted ultra vires. This is when Dutchbat on its own initiative operated outside its powers, or when it acted in contravention of instructions given by the UN. The attribution of this ultra vires conduct to the Netherlands is based upon the Dutch control over personnel and disciplinary matters: the Netherlands could select and train its personnel and take disciplinary measures in case of misconduct. The second is when the mission failed after the fall of Srebrenica. From then, the Netherlands was involved in the decision-making process at the highest level and was itself responsible for the evacuation of its troops. This leads to the conclusion that the Netherlands had effective control over the strictly limited period after the fall of Srebrenica, and only for conduct that took place within the mini safe area which was controlled by Dutch troops.
Based on these two lines of reasoning, the Court singles out seven types of conduct over which the Netherlands exercised effective control. Consequently, the Court continues with assessing the illegitimacy of the attributed conduct, which will not be discussed here.
A few short, general observations can be made, based on this part of the judgment.
First, it must be noted that the Court attached no decisive value to the UN opinion that ultra vires conduct exclusively needs to be attributed to the UN, except in case of gross negligence or willful misconduct. This may seem strange, but I think it is appropriate that the Court gave primacy to the DARIO – which to a large extent reflects international customary law – over non-binding resolutions from the General Assembly.
Secondly, the Court carefully limited the attribution of conduct to the Netherlands to cases in which the Netherlands actually took part in the decision-making process, whether or not in contravention of UN decisions. It is my opinion that the judgment will not severely impact the preparedness of states to contribute to UN missions, especially now several improvements have been made with respect to UN missions and the Srebrenica case is exceptional. However, it may serve as a warning signal to member states to really leave the operational command to the UN where it should be.
Thirdly, UN member states could not agree on the establishment of a UN army, but instead made the UN peacekeeping task dependent on national troops. It is inherent in this system that member states retain certain responsibilities (such as training, selection and disciplinary powers), but consequently will bear accountability for those responsibilities.
Fourthly, it is inconceivable that member states will never be responsible for the conduct of their troops in the exercise of UN missions. In that case member states could send untrained troops, disobey UN instructions or even commit international crimes and still point to the UN, which is granted absolute immunity. The methodology used by the Dutch district court to define in what exceptional circumstances the Netherlands bears responsibility for the conduct of Dutchbat, seems a fair and useful way to distinguish between UN and national responsibilities.