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KILLINGS AT SREBRENICA, EFFECTIVE CONTROL, AND THE POWER TO PREVENT UNLAWFUL CONDUCT

Published online by Cambridge University Press:  17 August 2012

Tom Dannenbaum
Tom Dannenbaum
Affiliation:
Tom Dannenbaum is a Ph.D. Candidate in Politics at Princeton University and a Visiting Lecturer in Law at Yale Law School, [email protected].
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Abstract

This article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.

Type
Current Developments: Public International Law
Information
International & Comparative Law Quarterly , Volume 61 , Issue 3 , July 2012 , pp. 713 - 728
Copyright
Copyright © British Institute of International and Comparative Law 2012

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References

1 Gerechtshof's-Gravenhage (Court of Appeal in The Hague), Mustafić-Mujić v The Netherlands, Judgment, LJN: BR 5386 (5 July 2011) (‘Mustafić-Mujić Court of Appeal Judgment’); Gerechtshof's-Gravenhage, Nuhanović v The Netherlands, Judgment, LJN: BR 5388 (5 July 2011) (‘Nuhanović Court of Judgment’). Since the cases are identical on all relevant points of law I cite only to the Nuhanović judgment in what follows.

2 Rechtbank's-Gravenhage (District Court in The Hague), MM-M, DM, AM v The Netherlands (Ministry of Defense and Ministry of Foreign Affairs) Judgment, LJN: BF0182/265618 (10 September 2008); Rechtbank's-Gravenhage, HN v. The Netherlands (Ministry of Defense and Ministry of Foreign Affairs), Judgment, LJN: BF0181/265615 (10 September 2008) (‘HN District Court Judgment’). Since the cases are identical on all relevant points of law I cite only to the HN judgment in what follows.

3 Rechtbank's-Gravenhage, Association of Citizens “Mothers of Srebrenica” v The Netherlands and UN, Judgment, LJN: BD6796/295247 (10 July 2008) paras 5.17–5.26, 6.1 (‘Mothers of Srebrenica District Court Judgment’). Upheld by the Court of Appeal: Gerechtshof's-Gravenhage, Association of Citizens “Mothers of Srebrenica” v The Netherlands and UN, Judgment, LJN: BL8979 (30 March 2010) (‘Mothers of Srebrenica Court of Appeal Judgment’). Upheld by the Dutch Supreme Court: Hoge Raad der Nederlanden (Dutch Supreme Court), Association of Citizens “Mothers of Srebrenica” v The Netherlands and UN, Judgment, LJN: BW1999 (13 April 2012) (‘Mothers of Srebrenica Supreme Court Judgment’).

4 Al-Jedda v UK App no 27021/08 (ECtHR, 7 July 2011) (‘Al-Jedda’).

5 See eg UNSC Res 819 (16 April 1993) UN Doc S/RES/819 (classifying Srebrenica as a ‘safe area’).

6 In addition to UNPROFOR, the new structure also included UNCRO and UNPREDEP under UNPF command. See UNSC Res 981 (31 March 1995) UN Doc S/RES/981; UNSC Res 982 (31 March 1995) UN Doc S/RES/982; UNSC Res 983 (31 March 1995) UN Doc S/RES/983; Report of the Secretary-General Pursuant to Security Council Resolution 947 (1994) (22 March 1995) UN Doc S/1995/222, paras 84–5.

7 ‘Dutch Government Quits Over Srebrenica,‘BBC News (16 April 2002) <http://news.bbc.co.uk/2/hi/europe/1933144.stm>. For the report, see: The Netherlands Institute for War Documentation, Srebrenica – A ‘Safe’ Area, (NIWD 2002) available at <http://www.srebrenica.nl/Pages/OOR/23/379.bGFuZz1OTA.html>.

8 Nuhanović Court of Appeal Judgment (n 1) paras 5.5, 6.3.

9 ibid para 6.4.

10 ibid. Art 6 of the ICCPR enshrines the right to life, Art 7 the right against torture and cruel, inhuman or degrading treatment or punishment. International Covenant on Civil and Political Rights, 999 UNTS 171 (16 December 1966) arts 6, 7.

11 Nuhanović Court of Appeal Judgment (n 1) paras 6.3.

12 Al-Skeini v UK, App no 55721/07 (ECtHR, 7 July 2011) paras 130–50.

13 Nuhanović Court of Appeal Judgment (n 1) paras 6.2, 6.3, 6.20 (noting and applying the relevant provisions of the Act on Obligations of Bosnia and Herzegovina).

14 Ibid para 6.22.

15 ibid para 6.1. The same claim was raised with respect to the separation of Mustafić from his wife and children. Mustafić-Mujić Court of Appeal Judgment (n 1) para 6.1.

16 Nuhanović Court of Appeal Judgment (n 1) para 6.1.

17 ibid. Again the same claims were made with respect to Mustafić. Mustafić-Mujić Court of Appeal Judgment (n 1) para 6.1.

18 Nuhanović Court of Appeal Judgment (n 1) para 6.22.

19 See, for example, the Mothers of Srebrenica litigation (n 3).

20 Nuhanović Court of Appeal Judgment (n 1) para 6.7.

21 ibid para 2.27.

22 ibid para 6.7.

23 ibid paras 2.29, 6.7.

24 ibid para 6.11.

25 ibid paras 2.27, 6.7.

26 ibid para 2.14.

27 It has been suggested that the number 239 was based on a ‘hasty, incorrect count’ at the time, with the real able-bodied male population inside the compound exceeding 320. Netherlands Institute for War Documentation (n 7) Part IV, 157.

28 ibid 158 (noting that a ‘small number ended up in the prison camp of Batkovici near Bijeljina and were released in December 1995 as part of the Dayton Agreement.’).

29 The Court of Appeal found that the Bosnian Serbs removed the displaced persons gathered outside the compound on 12 and early 13 July, before taking custody of those who were in the compound in the afternoon of 13 July. Nuhanović Court of Appeal Judgment (n 1) paras 2.24, 2.26.

30 ibid para 6.20.

31 ibid.

32 ibid para 6.12.

33 ibid para 6.18.

34 HN District Court Judgment (n 2) paras 4.8–4.14.5.

35 ibid para 4.14.1 [emphasis added].

36 Behrami v France and Saramati v France, Germany and Norway App nos 71412/01 and 78166/01 (ECtHR, 31 May 2007) para 133 (‘Behrami and Saramati’). See also Kasumaj v Greece App no 6974/05 (ECtHR, 5 July 2007); Gajić v. Germany, App no 31446/02 (ECtHR, 28 August 2007).

37 Nuhanović Court of Appeal Judgment (n 1) para 5.2.

38 ibid para 5.3.

39 ibid para 5.4.

40 Al-Jedda (n 4) paras 79–86 (especially para 84).

41 Nuhanović Court of Appeal Judgment (n 1) para 5.8 [emphasis added] [internal citations omitted].

42 Al-Jedda (n 4) para 84 [emphasis added] (‘It would appear from the opinion of Lord Bingham in the first set of proceedings brought by the applicant that it was common ground between the parties before the House of Lords that the test to be applied in order to establish attribution was that set out by the International Law Commission, in Article 5 [now Article 7] of its draft Articles on the Responsibility of International Organisations and in its commentary thereon, namely that the conduct of an organ of a State placed at the disposal of an international organisation should be attributable under international law to that organisation if the organisation exercises effective control over that conduct (see paragraphs 18 and 56 above). For the reasons set out above, the Court considers that the United Nations Security Council had neither effective control nor ultimate authority and control over the acts and omissions of troops within the Multi-National Force and that the applicant's detention was not, therefore, attributable to the United Nations.’).

43 International Law Commission, Draft Articles on the Responsibility of International Organizations, UN Doc A/CN.4/L.778 (2011) art 7 [emphasis added], submitted to the General Assembly following adoption by the ILC: International Law Commission, Report on the Work of its Sixty-Third session, (GAOR 66th Session, supp no 10) UN Doc A/66/10 (2011) para 87 (‘ILC Report’).

44 Nuhanović Court of Appeal Judgment (n 1) para 5.8.

45 As an aside, it is interesting that the District Court's ‘operational command and control’ and ‘cutting across’ test and the Behrami ‘ultimate authority and control’ test seem to adopt a similar presumption, though in precisely the opposite direction—attributing conduct to the international organization unless the state usurps control. HN District Court Judgment (n 2) paras 4.8–4.15; Behrami and Saramati (n 36) paras 133–5.

46 Nuhanović Court of Appeal Judgment (n 1) para 5.8.

47 See the article cited by the Court as a source on the concept of ‘effective control’ (ibid para 5.8): Dannenbaum, Tom, ‘Translating the Standard of Effective Control into a System of Effective Accountability’ (2010) 51 HarvIntlLJ 141Google Scholar.

48 ILC Report (n 43) 85.

49 ibid 87 [emphasis added].

50 ibid [emphasis added].

51 ibid 93.

52 ibid 85.

53 Nuhanović Court of Appeal Judgment (n 1) para 5.9 [emphasis added].

54 ILC Report (n 43) 91 fn 129 (noting that the decision followed Dannenbaum (n 47) 157). See also Nollkaemper, André, ‘Dual attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’ (2011) 9 JICJ 1148Google Scholar (‘The approach taken by the Court is quite close to a position defended by Tom Dannenbaum’).

55 Dannenbaum (n 47) 157.

56 The Court uses the term ‘power to prevent’, so I use this phrasing to describe the approach in what follows. However, as is clear from the Court's reasoning, and as I made explicit in my initial proposal for this approach, the relevant question is whether the entity had the power to act lawfully so as to prevent the impugned conduct, not whether it could have prevented that conduct by any means whatsoever.

57 Military and Paramilitary Activities in and against Nicaragua (Nicaragua v US) (Merits) 1986 ICJ Rep 14 (27 June 1986) para 115.

58 Application of the Convention on the Prevention and Punishment of the Crime of Genocide ( Bosnia and Herzegovina v Serbia and Montenegro) (Judgment), 2007 ICJ Rep 43 (26 February 2007) paras 309, 401.

59 ibid para 401.

60 ibid paras 400, 406, 412, 413.

61 ibid para 406.

62 This is apparent even in the peacekeeper's attire, which includes the national uniform, supplemented with ‘standard United Nations accoutrements’. The Secretary-General, Draft Model Status of Forces Agreement for Peace-keeping Operations, UN Doc A/45/594 (9 October 1990) para 37.

63 ILC Report (n 43) 86 [emphasis added].

64 Dannenbaum (n 47) 169–70. The ILC explicitly acknowledges the possibility that dual attribution may be appropriate in this context, although the Commission suggests that it ‘may not frequently occur in practice’. ILC Report (n 43) 81.

65 Nuhanović Court of Appeal Judgment (n 1) para 5.9.

66 Al-Jedda (n 4) para 80. (‘The Court does not consider that, as a result of the authorisation contained in Resolution 1511, the acts of soldiers within the Multi-National Force became attributable to the United Nations or—more importantly, for the purposes of this case—ceased to be attributable to the troop-contributing nations.’)

67 Al-Jedda (n 4) paras 80–6.

68 The ILC's position on this point is that ‘attribution of a certain conduct to an international organization does not imply that the same conduct cannot be attributed to a State; nor does attribution of conduct to a State rule out attribution of the same conduct to an international organization.’ ILC Report (n 43) 81.

69 Nuhanović Court of Appeal Judgment (n 1) para 5.7.

70 ibid para 5.11. (‘[T]he context in which the alleged conduct of Dutchbat took place differs in a significant degree from the situation in which troops placed under the command of the UN normally operate, as was the issue at stake in [Behrami and Saramati].’)

71 ibid paras 5.10–5.12.

72 ibid paras 5.17.

73 ibid para 5.18 [emphasis added].

74 ibid para 5.18 [emphasis added].

75 ibid para 5.20.

76 ibid para 6.8.

77 ibid para 6.20.

78 See n 70.

79 Nuhanović Court of Appeal Judgment (n 1) para 2.16.

80 ibid para 6.8.

81 ibid.

82 Dannenbaum (n 47) 160.

83 ibid 164.

84 ibid.

85 Nuhanović Court of Appeal Judgment (n 1) para 5.10.

86 ibid para 5.18 [emphasis added].

87 ibid paras 8.1–8.5.