A Disappointing End of the Road for the Mothers of Srebrenica Litigation in the Netherlands

On Friday, the Dutch Supreme Court issued its final decision in the Mothers of Srebrenica litigation regarding the acts and omissions of the Dutch battalion (Dutchbat) of U.N. peacekeepers at Srebrenica in July 1995 (English translation). I’ve written previously on these pages about a pair of earlier, narrower cases (Nuhanović and Mustafić-Mujić) related to the Netherlands’ responsibility for Dutchbat’s failures during the genocide  (see here, here,  and here). Friday’s ruling marks the end of an extraordinarily lengthy process regarding the more comprehensive litigation effort led by the Mothers of Srebrenica organization. The litigation went up to the European Court of Human Rights on the issue of U.N. immunity (which was upheld), before turning to the responsibility of the Netherlands.

In this post, I discuss four issues arising in the Supreme Court’s decision

• the Court’s apportionment of responsibility to the Netherlands for Bosnian Serb forces’ killings of the 350 Bosnian Muslim men who had been in Dutchbat’s compound;
• the theory of attribution adopted by the Court, and how it compares to the approach adopted in earlier Srebrenica cases;
• the Court’s approach to Dutch responsibility for those outside the compound;
• and the justiciability of the duty to prevent genocide.

The Percentage of Dutch Responsibility

The headlines have focused on the Netherlands’ share of liability. The Court of Appeal held the state liable for 30% of the damages associated with the killings of the 350 men whom Dutchbat had evicted from its Potočari compound and into the hands of the Bosnian Serb forces (VRS) (paras. 68-69.1). The Supreme Court reduced this share to 10% (para 4.7.9). Both courts appear to have applied a form of proportionate responsibility to Dutchbat with respect to the VRS killings, while applying joint and several responsibility to the Netherlands with respect to the actions of Dutchbat. In other words, the Netherlands is to be held fully responsible for the 10% apportioned to Dutchbat, even though Dutchbat’s conduct is potentially also attributable to the U.N.

Both the decision to approach responsibility in this partly proportionate way and the Supreme Court’s reduction of responsibility from 30% to 10% are obviously of great importance to the parties to the case at hand. However, their implications beyond the case are more limited. The approach to responsibility apportionment is not one on which the courts looked to international law for guidance. Moreover, the percentage allocated turned on a highly fact-specific determination of the probability that keeping the men in the compound would have saved them, given the military supremacy of the VRS on the ground. The basic disagreement between the Supreme Court and the Court of Appeal was over the probability that Ratko Mladić and his forces would have deemed the international escalatory risks too great to warrant using their superior might to forcibly remove the 350 men against the resistance of U.N. peacekeepers (paras. 4.7.1-4.7.9).

Attributing Peacekeepers’ Wrongdoing

The more important determinations of the Supreme Court from the perspective of international law were on the attribution of Dutchbat’s actions to the Netherlands. Most notably, the Court appears clearly to reject the Nuhanović Court of Appeal articulation of a power-to-prevent standard of attribution in such contexts. Specifically, it holds in para 3.5.3:

[T]he argument that effective control can also be evident from the circumstance that the State was in such a position that it had the power to prevent the specific act or acts of Dutchbat … is also based on an incorrect interpretation of the law. According to the Commentary (at 4) to Article 8 [Draft Articles on the Responsibility of States for Internationally Wrongful Acts (DARSIWA)], effective control only exists in the event of ‘actual participation of and directions given by that State’.

This is a step backwards. The power-to-prevent standard (which I have defended elsewhere: see here, here, and here) recognizes the levers of control retained by the state in peacekeeping operations (troop selection and promotion, training, disciplinary authority, and criminal jurisdiction) as necessarily relevant to the attribution of wrongful conduct by its troops. It attributes wrongs to the actor(s) holding the levers of control relevant to preventing those wrongs. For example, on the ordinary peacekeeping model, acts ultra vires would be attributed to the troop contributing country (TCC), whereas acts ordered by a U.N. commander would be attributed to the U.N., and still other acts would be attributed to both.

The Supreme Court rejected that position on the following grounds (paras 3.1.1-3.6.1). First, under article 8 of the International Law Commission’s Articles on the Responsibility of International Organizations (DARIO), the ultra vires acts of an international organization’s (IO’s) organs are attributable to that organization. Second, peacekeeping contingents are U.N. organs. Indeed, in the commentary to article 8 DARIO, there is a citation to a U.N. memo on the organization’s policy regarding the scope of U.N. liability for peacekeepers’ on- and off-duty acts as one of several examples of the attributability of the ultra vires acts of an IO’s organs to that IO. Third, TCCs can only be responsible for the conduct of those U.N. organs (i.e., the troop contingents that they, the TCCs, contributed) if they exercise Nicaragua-level effective control over the specific wrongful conduct, per article 8 of the DARSIWA. The assumption of this third point is that states’ peacekeeping troop contingents are not state organs (para. 3.3.3). If they were, that would trigger article 7 DARSIWA, which attributes the ultra vires acts of state organs to the state.

This reasoning is faulty. It ignores the International Law Commission’s intent regarding the position of peacekeeping in the DARIO framework. Recall, article 8 DARIO attributes the ultra vires acts of the organs of an international organization to the latter. This requires turning to article 6 DARIO, in which IO organs are first addressed. Indeed, the ILC commentary to article 8 specifically indicates that it is to be read in light of article 6 (Commentary to article 8, para 2). On the Supreme Court’s theory, one would expect peacekeepers to fall neatly into the article 6 category. However, peacekeepers are clearly intended to be addressed under the distinct category (covered by DARIO article 7) of “an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization.”

That peacekeepers fall in the latter category is clear from the ILC commentaries. The commentary to article 6 DARIO makes no mention of peacekeeping. The commentary to DARIO article 7, on the other hand, is explicit about both the difference between the articles and the place of peacekeeping:

Article 7 deals with the different [from article 6] situation in which the seconded organ or agent still acts to a certain extent as organ of the seconding State or as organ or agent of the seconding organization. This occurs for instance in the case of military contingents that a State places at the disposal of the United Nations for a peacekeeping operation, since the State retains disciplinary powers and criminal jurisdiction over the members of the national contingent. (Commentary to article 7, para 1; emphasis added).

The commentary goes on to discuss peacekeeping multiple times as the primary example of an article 7 situation. This contrasts starkly with both the absence of peacekeeping references in the commentary to article 6, and the passing and isolated reference to a U.N. policy memo in the commentary to article 8. Sensibly, then, in the earlier cases, the Dutch courts had focused on DARIO article 7, affirming the possibility of dual attribution based on an assessment of the respective entities’ power to prevent the wrongdoing.

Of course, even on the Supreme Court’s theory, the Netherlands is still responsible for the wrong of evicting the 350 men from the compound and thereby sending them to their deaths. However, this is due to the highly peculiar control situation that arose after the Netherlands decided to withdraw its troops from the peacekeeping mission in Bosnia (shortly before the eviction of the 350 men). From that point forward, the Dutch state began to exercise full operational control alongside the United Nations in a way that the Court deemed to satisfy the para 3.5.3 test noted above. The rarity (and in this case brevity) of that scenario does not portend significant TCC responsibility for peacekeeping abuses going forward. On the Supreme Court’s Mothers of Srebrenica approach, the acts of U.N. peacekeepers will ordinarily be attributed exclusively to the United Nations. The U.N., of course, continues to invoke immunity before any court, domestic or international. As such, in most cases, accountability will continue to disappear into a procedural black hole.

In addition to the flaws identified above, the notion that the U.N. should be attributed exclusively with the ultra vires acts of its peacekeepers is not normatively compelling. The levers of control relevant to preventing ultra vires wrongdoing in peacekeeping operations are training, discipline, punishment, troop selection, and promotion—all of which are held by the TCCs in the standard peacekeeping arrangement. Ignoring that reality, the Supreme Court’s approach divorces legal attribution from moral responsibility.

Responsibility for Victims Outside the Compound

A further important (and disappointing) aspect of the decision was the Supreme Court’s reversal of the Court of Appeal’s finding that the Netherlands (via Dutchbat) engaged in an illegal act when it facilitated the separation of men and boys from children, women, and the elderly in the “mini safe area” outside the compound. That separation was, of course, the prelude to the genocidal killing of the former.

The Court of Appeal had found that Dutchbat’s supervisory facilitation of the separation of these groups played no clear causal role in the deaths of the men and boys (paras 64.1-64.3). As such, it did not find the Netherlands liable for those deaths. Nonetheless, it held that the Netherlands engaged in an internationally wrongful act through its participation in the separation (para 61.8), reasoning: “Facilitating the serious violation of these fundamental rights justifies a declaratory decision that a wrongful act was committed, in spite of the fact that no causal relationship has been established.” (para 65)

The Supreme Court, overturned that declaratory holding. It reasoned:

Given the war situation in which decisions had to be taken under considerable pressure, and given the fact that decisions had to be taken based on a weighing of priorities, Dutchbat was reasonably entitled to opt to continue to cooperate in the evacuation by designating groups and forming a sluice, in order to – in any event – prevent chaos and accidents involving the most vulnerable people (women, children and elderly). (para. 4.5.4)

The risks to the latter were said to include the dangers that “people would be crushed and could be run over …. chaotic masses of people would end up at the buses, pushing forward with too many at a time in attempting to enter the buses, which buses then would have had to depart despite being overcrowded … the Bosnian Serbs would have treated the people harshly if Dutchbat had not positioned itself between them and the population.” (para. 4.5.3).

This is a breathtakingly consequentialist approach to the direct participation of public officials in a process of genocidal sorting. One can argue about whether the Court of Appeals was right not to hold the Netherlands liable for wrongs it (by assumption) could not have prevented. However, it is difficult to stomach the reversal of a declaration of the illegality of Dutchbat’s participation in the preparation of those genocidal acts on the speculative grounds that that facilitation helped to “prevent chaos and accidents.”

The Duty to Prevent Genocide

On the issue of genocide, a final point is worthy of note. The Court found that the duty to prevent genocide (per article I of the Genocide Convention) lacks direct legal effect for the purposes of litigation between individuals and the state (para 3.7.3). The basic problem, from the Court’s perspective, is the lack of precision in the principle (para 3.7.3).

Clearly, the duty is underspecified in the text of the Convention. However, if it is insufficient to guide responsibility in even the case of a U.N. battalion charged with maintaining a safe area to protect threatened populations from atrocity, it is difficult to imagine scenarios in which it could have any legal teeth at all.

Conclusion

The litigation around the events of July 1995 at Srebrenica has prompted what has been the most significant judicial review of responsibility for peacekeeping in history. Although

the judgment leaves open the door to TCC accountability for peacekeeper abuses (or wrongful omissions), it does so only very slightly. In most cases, the procedural black hole of sole U.N. attribution and comprehensive U.N. immunity will ensure a lack of accountability. Moreover, the decision whitewashes the participation of U.N. peacekeepers in genocidal sorting on the grounds that they made no difference and good order was maintained. Perhaps a regression was inevitable after the promise of the earlier Dutch cases. Nonetheless, this judgment marks an unfortunate culmination.