Home EJIL Analysis Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica

Dutch Supreme Court Affirms that Dutchbat Acted Unlawfully in Srebrenica

Published on September 8, 2013        Author: 

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.

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10 Responses

  1. Manuel Ventura


    While you are right that the Dutch courts may look into the prevention of genocide in these subsequent cases, wouldnt they only look at it within the confines of the Genocide Convention? Since The Netherlands is a state party, I do not see the need to go beyond a treaty obligation. And if this is indeed the approach taken, then they would have the ICJ Genocide judgment as a guide, as you have pointed out. Nevertheless, it will be interesting to see how far they take the prevention of genocide beyond what the ICJ said. Very interesting indeed. But at the same I do not see any apparent need to look at its status at customary international law or jus cogens in these cases. Unless of course the cases seeks to tap into jus cogens to overcome some bar to the litigation..

    This was why the litigation against the UN in Mothers of Srebrenica was so interesting and why I was disappointed that nothing on the issue was said. Because the obligation to prevent genocide does not apply to the UN as treaty law, that left only customary law or jus cogens, neither of which were explored in the judgments as Dapo and I pointed out in our post. I guess we would have to wait for other litigation to get to that point again.

  2. Tom Dannenbaum Tom Dannenbaum


    I agree that the courts are likely to rely exclusively on the treaty, and I agree that this makes the litigation against the Netherlands importantly different from the litigation against the UN, although I don’t think it precludes entirely the possibility that the courts will opine on the rule’s customary status.

    Even if the Dutch courts stick to the treaty, it may turn out that further considered judgments on the contours of the duty to prevent and its application to specific cases under the treaty fulfill an important customary international law function in developing a detailed rule (out of a pretty vague textual provision) that might later become customary law.

  3. Tilman Dralle


    thank you very much for your post. Sorry that my comment comes a bit late. You wrote that the Supreme Court affirmed the Court of Appeal’s contention that dual attribution of conduct exists in international law.

    I would agree that the idea of attributing the same conduct to more than one entity finds growing support. But what I find interesting is that both the Court of Appeals and the Supreme Court have not really clarified how “dual attribution” actually works and how the rules on attribution in the Articles on State Responsibility (ARS) and in the Draft Articles on the Responsibility of International Organizations (DARIO) interrelate.

    Тhe Supreme Court repeatedly states in its judgment that the test for attributing conduct to the Netherlands is whether the Netherlands had “effective control” over Dutchbat (paras 3.11.3 and 3.12.3). Then, in para 3.13, the Supreme Court makes a – to my mind – contradictory statement. It states that the Court of Appeal was able to find “on the basis of the attribution rule of article 7 DARIO, which is applicable to this case, partly in view of what is provided in the attribution rule of article 8 DARS – that the Dutchbat’s disputed conduct can be attributed to the State.”

    This means that the Supreme Court was undecided whether it should apply Article 7 DARIO or Article 8 DARS (anyway I would suggest Article 4 DARS is pertinent here!). To me it is entirely unclear whether the Supreme Court based its attribution of conduct to the Netherlands on the DARIO or on the DARS. This lack of clarity in the judgment is no surprise I think. It results from the fact that Article 7 DARIO by its wording does not apply to the State, but exclusively to international organizations. This was in fact acknowledged by the Court of Appeals in para 5.8 of its judgement. It admitted that “[…] strictly speaking [Article 7 DARIO] only mentions ‘effective control’ in relation to attribution to the ‘hiring’ international organization […]”.

    If the Supreme Court had thought that it could attribute the conduct of Dutchbat to the Netherlands on the strength of Article 7 DARIO, it would have done so. But it felt it necessary to (also?) rely on Article 8 DARS, which suggests that the body of law which serves as the basis for attributing the conduct of Dutchbat to the Netherlands is the DARS and not the DARIO.

    Any thoughts on this?

    Kind regards,

  4. Tilman,

    In principle, the attribution of Dutchbat’s conduct to the Netherlands is indeed governed by the DARS rather than the DARIO, given that it is the former set of articles which deal with the responsibility of States. However, although DARIO’s primary focus is on the responsibility of international organizations, Part Five is concerned with the responsibility of States for the conduct of an international organization. DARIO thus contains rules governing the responsibility of international organizations and States. Moreover, DARIO builds on the DARS in more than one respect. When Article 7 DARIO refers to the ‘conduct of an organ of a State’ which is placed at the disposal of an international organization, it is in fact invoking the general rule of attribution laid down in Article 4 DARS.

    As the DARIO Commentary makes clear, the purpose of Article 7 is to reduce the possibility of dual attribution: by applying the effective control test, one has to attribute the conduct of a seconded organ either to the seconding State or to the host organization. I don’t find this to be a particularly attractive proposition, as I have argued in more detail elsewhere ( While simplifying the attribution of conduct in the context of peace support operations is a noble aim, Article 7 – ironically perhaps – seems to reject the possibility of dual attribution. Moreover, it does so by applying a purely factual test of attribution – effective control – at the expense of ignoring the legal position of national contingents as organs of their contributing State and, possibly, as (subsidiary) organs of the international organization conducting the operation.

    With that in mind, I agree that Article 4 DARS is relevant, but so is Article 6 DARIO!


  5. Tilman Dralle

    you say that it is the purpose of Article 7 DARIO to reduce the possibility of dual attribution. Others, however, argue that dual attribution occurs, when both actors (eg State and the IO) have “effective control” over a certain conduct. This effectively means that “effective control” on the part of one actor does not preclude the possibility of “effective control” on the part of another actor. Following this interpretation, Article 7 DARIO does not reduce the possibility of dual attribution, but it is rather Article 7 DARIO that opens up the possibility of dual attribution. Note in this context the statement of the Supreme Court (at para. 3.11.2) that even if the United Nations had effective control over Dutchbat’s conduct, this “does not necessarily mean that the United Nations had exclusive responsibility”.

    Kind regards,

  6. Read in the light of its drafting history and the Commentary, I understand Article 7 as an attempt to simplify the attribution of the wrongful conduct of seconded organs, in particular the wrongful conduct of peace support operations and their national contingents. Because various legal and factual ties may bind national contingents both to the troop contributing nation as well as to the international organization conducting the operation, in many cases their conduct may be attributed to the State in question, the international organization or indeed both. What Article 7 attempts to do is to cut across this complexity on the basis that ‘the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question’ (para 8 of Commentary to Art 7 DARIO).

    In other words, what Article 7 instructs us to do is to disregard all legal ties that might exist between national contingents on the one hand and their troop contributing nations and the relevant international organizations on the other hand in favour of applying only a factual control test. Although the Commentary distinguishes between organs that are fully seconded and organs that are not fully seconded, and declares that fully seconded organs fall under the rule of attribution laid down in Article 6, I find this distinction unconvincing or at least inapplicable to armed forces. No State ever fully seconds its armed forces to another entity: they always retain mutliple links with their home State (cf concept of ‘full command’ etc). What this means is that in the case of peace support operations, Article 7 simply tries to eliminate some of the other grounds of attribution in favour of applying the effective control test. This is why I wrote that the purpose (or perhaps to be more prices: effect) of Article 7 is to reduce the possibility of dual attribution.

    Now, it may well be that individual troop contributing nations and the international organization may have effective control over different aspects of the seconded organ’s conduct. For example, as is well known, the UN lacks the capacity to exercise disciplinary or criminal jurisdiction over members of national contingents participating in UN peace operations. That capacity always remains with the troop contributing nations, while the applicable status arrangements normally also entitle them to exercise their jurisdictional capacities in the territory of the host State. This is precisely why I am suggesting that national contingents (or other State organs) are never ‘fully seconded’ within the meaning of the DARIO Commentary.

    However, it does not follow from the fact that troop contributing nations and international organizations may both exercise effective control over different aspects of a national contingent’s conduct that the effective control test under Article 7 DARIO leads to dual attribution. This is so because Article 7 is concerned only with effective control over the wrongful act in question, not the totality of the applicable control arrangements. The question to be decided is which entity, the State or international organization, had effective control over that particular wrongful act. I accept that both the State and the international organization may exercise some level of control over the act concerned. This is why I think it is wrong to insist that the conduct of a seconded organ can only be attributed to the receiving entity if it is under its ‘exclusive direction and control’ (see para 4 of Commentary to Art 7 DARIO): control over a seconded organ is never truly exclusive by definition! However, to my mind the test of ‘effective control’ requires us to identify which actor exercised the greater level of control, or had the potential to do so. Effective control is always about most effective control.

    Consequently, since only one entity, the State or the international organization, can exercise the most effective control over the particular act in question, it follows that the effective control test does not lead to dual attribution. At least if we are to be consistent.

  7. Correction to para 2: to be more precise rather than ‘prices’. Need more coffee…

  8. Tilman Dralle

    I agree fully with what you say. But the most important judgments affirming dual attribution (Nuhanovic, Court of Appeals and Supreme Court) suggest that both the State and the IO can have “effective control” at the same time. But if, as you say, “effective control” and “dual attribution” are mutually exclusive, we have two options:
    1) We discard the concept of dual attribution. If the IO has effective control under Article 7 DARIO, the conduct is attributable solely to the IO. If the IO does not, the conduct is solely attributable to the State under Article 4 DARS. Taking into account the multiple references to dual attribution in the DARIO (and the human rights-friendly thrust of dual attribution), I don’t find this option very attractive.
    2) We have to change our theoretical conception of “dual attribution”. If, as you say, the host State always retains some level of control over its armed forces placed at the disposal of an IO, Article 4 DARS could operate ALONGSIDE Article 7 DARIO. Actions of the armed forces would always be attributable to the host State under Article 4 DARS and could, if the IO exercised effective control over the conduct, ALSO be attributable to the IO under Article 7 DARIO.

  9. Tilman,

    There is no need to discard the concept of dual attribution. The point I’m making is that the concept of ‘effective control’ does not admit dual attribution. However, the fact that the effective control test only admits attribution of conduct to one party, and one party only, does not mean that the same conduct may not be attributed to another party on the basis of other grounds of attribution, in particular legal/institutional criteria (Art 4 DARS, Art 6 DARIO).

    In other words, there is no duality of attribution under the heading of factual control, but there is duality of attribution on the basis that separate grounds of attribution may apply at the same time (factual and legal).

    My point is precisely that in the case of seconded organs Article 4 DARS operates alongside Article 7 DARIO as per your point 2). Moreover, in the case of seconded State organs which are incorporated into the institutional structure of an international organization, as happens with national contingents participating in UN peace operations, Article 6 DARIO will also apply alongside Article 4 DARS and Article 7 DARIO. However, by drawing the distinction between fully and not fully seconded organs, the Commentary to Article 7 denies this outcome. Wrongly, in my view, for the reasons set out in the piece linked in earlier. For a more detailed discussion of these points in the context of EU military operations, see a chapter I have written with Ramses Wessel at


  10. Tom Dannenbaum Tom Dannenbaum

    Tilman and Aurel,

    Many thanks for your comments. As I discuss in the posts on the Court of Appeal judgment (and elsewhere), my view is that it is possible for multiple states or IOs to exercise effective control over the same specific conduct. This requires expanding our notion of effective control to include an analysis of the distribution of powers relevant to lawfully preventing the specific wrongful act. On that level, I agree with Aurel’s comment about the “potential” to exercise control over the act – although we clearly disagree about whether multiple entities can exercise effective control simultaneously.

    The Court of Appeal applied this power-to-prevent standard and the Supreme Court endorsed the Court of Appeal’s interpretation without caveat. Notably, despite the passing and unclear reference to DASR article 8, the Supreme Court’s analysis on this point (like the analysis of the Court of Appeal) is rooted in an interpretation and application of the “effective control” principle provided in DARIO article 7. That analysis includes in para 3.12.2 reference to the power to prevent as a form of effective control.

    For reasons discussed in the earlier posts, I think this is a desirable way forward. It keeps open the possibility of dual attribution without holding the state responsible when its retained institutional powers are irrelevant to the wrongdoing in question. Applying DASR article 4 without any reference to the DARIO would require holding the state responsible when it has no relevant control over the act in question (and when that control is instead held by the IO, which may also be attributed with the act under either DARIO art. 6 (as argued by Aurel) or art. 7 (as argued by Tilman)). This is problematic for a number of reasons discussed here – Most notably it encourages states to cut across the UN (or analogous) chain of command in ways that have undermined peacekeeping missions in the past and provides a greater disincentive to contribute to peacekeeping (or similar cooperative ventures) than does the effective control test. Given the vital role of well-functioning, international cooperation in furtherance of lawful ends, this would be thoroughly undesirable.

    Tilman – it’s important to acknowledge that you accept the possibility of DARIO article 7 determining whether the state is attributed with the wrongful act. You argue that DARIO article 7 can override DASR article 4 when the IO exercises effective control (and you do not source this override of state responsibility in DASR article 4). True, this is not your preferred option (it is option (1) of your dilemma), but you do not dismiss it as legally incoherent. If you accept this, it is not clear to me why you rule out as impossible the application of a power-to-prevent standard of effective control under DARIO article 7 to make the same judgment. The only difference is where we draw the line with respect to the impact of DARIO article 7 on the application of DASR article 4. I say that IO effective control does not eliminate attribution to the state if the state also retains effective control over the relevant conduct. You say (in option (1)) that DARIO article 7 may override DASR article 4 when the IO exercises effective control. In both cases, one would use the effective control standard described in DARIO article 7 to determine the limits of DASR article 4 attribution to the state. This is quite natural, since DARIO article 7 is the only article in either the DARIO or the DASR that is truly tailored to this kind of scenario. The bottom line from my perspective is that the best approach is one that looks at the distribution of the levers of control relevant to preventing the specific act. I accept that this is not the cleanest textual reading of DARIO article 7, but texts have to be read in light of the normative purpose of the law. As I have argued elsewhere, the approach I suggest and the approach taken by the Dutch courts finds support in the commentary (see: It is, in my view, the optimal approach to responsibility in this context.

    As an aside, your citation to para 5.8 of the Court of Appeal ruling is taken out of context – the court continues in the same sentence to hold that “the same criterion applies to the question whether the conduct of troops should be attributed to the State who places these troops at the disposal of that other international organization.”

    On Aurel’s point about who had “most effective control” (or who had the most potential to exercise effective control) – I’m not sure why we need to go that far. The respective strengths of the two entities’ levels of control may be relevant to the apportionment of liability, but if both had the potential to exercise control, why should the fact that one had a slightly stronger power in that respect preclude shared attribution? I understand that you prefer not to use the effective control test here at all, but I don’t think it precludes dual attribution.