Tom Dannenbaum is a Visiting Lecturer in Law and Robina Foundation Human Rights Fellow at Yale Law School and a PhD candidate at Princeton University.
In a couple of posts in 2011, I discussed two nearly identical Hague Court of Appeal judgments on the liability of the Netherlands for the actions of Dutchbat at Srebrenica (see here and here). On Friday, the Dutch Supreme Court upheld both of those judgments. In what follows I’ll reference the Nuhanović decision.
The judgments are important on their own terms, but they are also significant in their implications for the Mothers of Srebrenica litigation against the Netherlands, particularly following the judgment of the European Court of Human Rights this summer upholding the Dutch courts’ acceptance of UN immunity in that context. Coincidentally, Dapo and Manuel Ventura posted on the ECtHR’s decision in Mothers of Srebrenica within minutes of the Dutch Supreme Court’s Nuhanović judgment. I connect back to their post below.
The Supreme Court affirmed the Court of Appeal’s strong approach to dual attribution, holding that it was possible that both the Netherlands and the UN had effective control over the same wrongful conduct and that attributing the conduct to the Netherlands did not in any way determine whether the UN also had effective control (such that it, too, could be attributed with the wrongdoing). (para 3.11.2). Relatedly, the Court also affirmed the power-to-prevent standard discussed in the second of my earlier posts (paras 3.11.3, 3.12.2, 3.12.3). I have advocated this standard at greater length elsewhere (here and here).
The aspect of Friday’s judgment that did the most work in going beyond the reasoning of the Court of Appeal was the Supreme Court’s discussion of extraterritoriality. It elaborated on two points in this respect (acknowledging explicitly that its discussion on this amounted to obiter dictum).
First, the Court emphasized the extraterritoriality of the ECHR (citing Al-Skeini). Without the benefit of the Al-Skeini precedent, the Court of Appeal had avoided any interpretation of the jurisdiction clause of the Convention, reasoning instead that the rights codified in articles 2 and 3 of the ECHR (and 6 and 7 of the ICCPR) were also rules of customary international law that are binding extraterritorially in that form. The reference to Al-Skeini emphasizes that this ambitious customary law reasoning has a more robust treaty law alternative.
Second, in discussing whether Dutchbat (and thereby the Netherlands) had control of the kind that would be sufficient to trigger extraterritorial human rights obligations, the Court emphasized Bosnian consent to the presence of UNPROFOR and its control over the Potočari compound. This, the Court held, gave the Netherlands the competence to exercise ECHR jurisdiction in the compound. (para 3.17.3). This de jure competence was not impeded by any de facto prevention of Dutchbat control over the compound because “the Bosnian Serb army respected Dutchbat’s authority over the compound.” For this reason, the Court held, the Netherlands was “actually able to ensure compliance” with its human rights obligations to those in the compound. (para 3.17.3).
The reference to Bosnian consent leaves it somewhat unclear whether the Court is relying on the kind of extraterritorial jurisdiction described in para 135 of Al-Skeini (“when, through the consent, invitation or acquiescence of the Government of that territory, [the foreign state] exercises all or some of the public powers normally to be exercised by that Government”). Or whether it relies on the “effective control over an area” standard described in paras 138-139 of Al-Skeini. It may be that the latter was deemed less robust given that Dutchbat was militarily outmatched by the VRS forces outside the compound and dependent on the latter’s “respect” of its authority over the compound. (Cf para 139 of Al-Skeini). That would almost make the Dutch jurisdiction dependent on a hybrid of de jure consent by Bosnia and Herzegovina and de facto consent by the VRS. Even without the consent of Bosnia and Herzegovina, if the Bosnian Serb forces were respecting Dutchbat control of the compound, the battalion arguably had de facto control over area, and (in the alternative) over the individuals in question. (see para. 136 Al-Skeini). More discussion on this would have been useful.
All of this relates back to the post by Dapo and Manuel on the Mothers of Srebrenica litigation. They concluded with the following comment: “With the ECtHR’s ruling, the Mothers of Srebrenica litigation against the UN has reached the end of the road. However, we are no closer to finding out about the true nature of the issue at the core of the case: the obligation to prevent genocide at international law.” This is, of course, true, but the end of the litigation against the UN is not the end of litigation against the Netherlands. The issue at the center of their post – the scope and force of the obligation to prevent genocide – may very well be discussed in the latter, particularly since there is a good chance of attribution of the conduct of Dutchbat to the Netherlands (on the same grounds that underpinned attribution in Nuhanović). The ECtHR emphasized as much in the Mothers of Srebrenica judgment (para. 167)
The aforementioned narrow focus of the Nuhanović judgment on the obligations of the Netherlands within the Dutchbat compound suggests that there may be difficulty applying human rights obligations outside the Dutchbat compound. However, the obligation to prevent genocide is a different issue. In the Genocide Case, the ICJ seemed to describe a potentially global responsibility to prevent genocide, varying with a state’s “capacity to influence” the genocidal action. “Geographical distance” from the wrongdoing was deemed an important factor in that case. (para 430). This is significant – Dutchbat could hardly have been closer to the genocide at Srebrenica. Opposing that position in his separate opinion, Judge Tomka instead argued that the “obligation to prevent genocide outside its territory” applies “to the extent that [the state in question] exercises jurisdiction outside its territory, or exercises control over certain persons in their activities abroad.” (para 67). See also Marko’s discussion of this.
Under either standard, the Mothers of Srebrenica may struggle in the Dutch courts. The Supreme Court in Nuhanović emphasized that when the “mission had in fact failed. . . Dutchbat could . . . no longer exert any influence outside the compound.” (para 3.12.3). Whether this will preclude successful suit against the Netherlands for failing to prevent genocide remains to be seen, but the issues that Dapo and Manuel argue ought to have been discussed by the ECtHR stand a greater chance of being addressed in litigation against the Netherlands.
Connecting to another point of discussion in their post, litigation against the Netherlands would be relevant to the United Nations obligation to prevent genocide only to the degree that it emphasizes the customary and jus cogens status of the norms. This, too, may or may not be something the Dutch courts will address in adjudicating the claims brought against the Netherlands.