Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)
In an earlier post, I reported on the Hague Court of Appeal’s decisions in Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands regarding the wrongdoing of Dutchbat at Srebrenica. Here, I examine the Court’s holding on the attribution of that wrongdoing to the Dutch state.
The decisions provide stronger and clearer jurisprudential affirmation of the principles of “effective control” and dual attribution than does the Grand Chamber’s judgment in Al-Jedda v. United Kingdom (handed down just two days later). Moreover, the Court of Appeal’s elaboration of “effective control” establishes several key features of the concept as applied in the peacekeeping context. First, the “effective control” analysis should be applied equally to the contributing state and the receiving international organization. Second, “effective control” includes not just giving orders, but also the capacity to prevent the wrongdoing. Third, though the Court’s position on this is slightly more ambiguous, troop-contributing states may sometimes hold that “power to prevent” in virtue of their authority to discipline and criminally punish their troops for contravening U.N. orders. I would go beyond the Court’s reasoning on this third feature to add that the state’s authority with respect to selecting and training troops and contingent commanders is also relevant in this regard.
Since the decisions do not differ on any significant matters of substance, the citations below are to Nuhanović, but apply equally to Mustafić-Mujić. Read the rest of this entry…