Torts in Dutch Foreign Relations: Choice of Law Issues

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Uglješa Grušić’s Torts in UK Foreign Relations is an impressive work discussing the relevance of private international law for tortious claims arising out of the external exercise of British executive authority. As I have no expertise in UK or English law, I will engage with Uglješa’s work from a comparative law perspective. In particular, I will address how Dutch courts have engaged with the Dutch government’s tortious liability for its external exercise of public power, especially in military matters. Thematically, I will focus on issues of choice of law, which Uglješa’s addresses in the central Part III of his book.

Uglješa’s main argument as to choice of law is that the government’s tortious liability for its external exercise of public power should not depend on the content of foreign private laws, but rather on domestic law (even if he reserves some role for foreign laws) (para. 1.33). He regrets that, in legal practice, English courts tend to apply foreign law as lex loci delicti (para. 7.54). This is misguided, according to Uglješa, as choice of law rules governing the conduct of the government in the exercise of powers conferred under UK law should be applied differently to garden-variety torts (para. 11.14).

Also in the Netherlands, the application of choice of law rules has not been self-evident. Early court cases leaned towards the application of foreign law. Currently, however, there appears to be consensus that, in principle, Dutch law, as jus imperii, governs the liability of the State when it exercises its authority abroad. In this post, I discuss the takeaway points of relevant court cases related to Dutch military operations in Bosnia, Iraq, and the Dutch East Indies.

Foreign law as the applicable law

Initially, Dutch courts were of the view that the government’s tortious liability for its external exercise of public power was governed by foreign law. Thus, in the Nuhanovic case, which concerned a Dutch peacekeeping contingent’s sending away of a local Bosnian interpreter from the Dutchbat compound near Srebrenica (1995), leading to his death at the hands of a Bosnian Serb militia, the Court of Appeal of The Hague (2011) held that Dutchbat’s impugned conduct was to be reviewed in light of national Bosnian law (para. 6.3). The Court then went on to review the conduct of Dutchbat in light of the Bosnian law of obligations (para. 6.20). It is striking that the Court did not provide an argument why Bosnian law would apply. Instead, the Court simply observing that there was no dispute between the parties on this point, namely that they agreed that Bosnian law applied on the basis of Dutch private international law (para. 6.3).

Also later case-law evinces such deference to party autonomy, and reluctance to conduct a proprio motu inquiry into applicable law. In Jaloud, for instance, the District Court of The Hague (2019) observed that the tort liability of the Dutch State for the death of an Iraqi man, who was shot in the context of the deployment of Dutch troops in Iraq, was governed by Dutch law, simply because the parties were in agreement on this point (para. 4.1).

Dutch law as the applicable law

While in Nuhanovic, the Court of Appeal of The Hague considered that foreign law applied to the government’s tortious liability for its external exercise of public power, in the subsequent and related Mothers of Srebrenica, the District Court of The Hague (2014) considered Dutch law to be applicable – apparently in response to the State’s argument that public international law applied. I have commented at greater length on this in the Netherlands International Law Review in 2014, but, in essence, the Court’s argument echoes Uglješa’s: Dutch law applies on the ground that the unlawful actions of the State concern the exercise of its public authority (para. 4.167). Since 2012, this rule has been laid down in the Dutch Civil Code (Section 10:159), but according to the Court, also before 2012, it applied as unwritten private law (para. 4.169) – although the Court did not really proffer proof of the existence of this rule before 2012. Later courts in the Mothers of Srebrenica case have not disputed the Court’s ruling.

Dutch law was also held to apply in the somewhat curious line of Indonesian cases, concerning the tort liability of the Dutch State for wrongful acts committed in the context of the Dutch ‘police actions’, which took place during Indonesia’s struggle for independence after the Second World War. As to choice of law, these cases are curious to the extent that these incidents (e.g., executions), formally speaking, took place on the territory of the Netherlands (Dutch East Indies), and thus did not amount to the ‘external exercise of public power’. Nevertheless, as the Netherlands applied a separate body of ‘colonial’ law to the East Indies, according to the District Court of The Hague in the seminal Ragawede judgment (2011), this ‘Dutch-Indian’ (Nederlands-Indisch) law should in principle be applicable as lex loci delicti (para. 4.4). This tallies with the Court of Appeal’s approach to choice of law in Nuhanovic that same year. However, as the Dutch East Indies no longer existed as a legal entity, the District Court eventually declined to apply Dutch-Indian law (even if technically speaking, based on the principle of intertemporal law, such application could have been possible). Instead, it applied Dutch tort law, on the ground that the executions were carried out by Dutch servicemembers in the framework of Dutch colonial rule on territory that was part of the Netherlands (para. 4.4). This reasoning carries a whiff of Uglješa’s argument that that the government’s tortious liability for its external exercise of public power should depend on domestic law. 

The relevance of international human rights law

Even if Dutch law formally applies in tort cases pertaining to the exercise of Dutch external authority, from a substantive perspective however, international human rights law may be decisive. Indeed, the Supreme Court in Mothers of Srebrenica (2019) held that, as the standards derived from the ECHR and the ICCPR are also inherent in Dutch law, a breach of them must be deemed contrary the general standard of due care laid down in Section 6:162 Civil Code (para. 4.2.2). Relevant review standards also include the standards set by the European Court of Human Rights (ECtHR) in its case-law. Thus, in Mothers of Srebrenica, the Supreme Court, referring to the ECtHR’s judgment in Finogenov et al. v Russia, held that, when applying positive obligations under Articles 2 and 3 ECtHR, ‘account must be taken of the fact that Dutchbat was acting in a war situation, that operational choices had to be made on the basis of priorities and the available resources, and that human conduct is unpredictable’ (para. 4.4.2; see Istrefi for criticism of the Supreme Court’s test of positive obligations). This call for a contextual assessment, in light of challenging operational circumstances, should not be conflated with a call for judicial restraint, however (Supreme Court, Nuhanovic, para. 3.18.3).

Also the District Court of The Hague in Jaloud held that Dutch law was to be interpreted in light of the substantive protections offered by the European Convention of Human Rights. Formally, this was justified on the ground that the ECtHR had earlier ruled that the Dutch State exercised jurisdiction in the sense of Article 1 ECHR around the checkpoint where the man was shot (para. 4.1, referring to Jaloud v the Netherlands, 2014 – Marko Milanovic commented on this ECtHR judgment on EJIL:Talk!). This differs from the approach of the Supreme Court in Mothers of Srebrenica, pursuant to which Dutch jurisdiction over the area was not a prerequisite for the application of the ECHR, given that ECHR standards are part of Dutch law anyway (para. 38.7). 

Concluding observations

We can conclude that, as to choice of law, Dutch legal practice appears to correspond with the normative argument made by Uglješa, namely that domestic law governs (or should govern) the government’s liability in tort for its external exercise of public power, such as the projection of military power abroad. A choice of law rule that gives precedence to domestic law over foreign law is normatively preferable in that, unlike garden-variety torts, foreign torts caused in the exercise of government authority are inherently linked to the exercise of the State’s sovereignty, and are thus a matter of constitutional concern (see in this sense also Uglješa, para. 5.76). 

Not too much should be made, however, of the formal applicability of Dutch tort law. Insofar as the relevant tort can be qualified as an international human rights violation (e.g., violation of the right to life or the prohibition of torture), for Dutch courts, the content of the duty of care in tort law is strongly influenced by international, and especially European human rights law. This openness to international law is not surprising, as, in itself, the duty of care under Dutch tort law is a remarkably vague and open-ended duty which is in need of normative specification in concrete cases. In the particular context of the external exercise of public power giving rise to human rights violations, such specification logically come from international human rights law. 

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