Netherlands v Nuhanovic

• Jurisdiction: Holanda
• Judge: Bakels,Streefkerk,Loth,Drion,Polak
• Judgment Date: 06 September 2013
• Date: 06 September 2013
• Court: Supreme Court (Netherlands)

The Netherlands, Supreme Court.

(Bakels, Presiding Justice; Streefkerk, Loth, Drion and Polak, Justices)

Netherlands

and

Nuhanovi1

International organizations Responsibility Attribution of acts to international organization or to States United Nations Peacekeeping mission United Nations Security Council establishing United Nations Protection Force (UNPROFOR) Security Council Resolution 743 (1992) Peacekeeping mission of UNPROFOR extending to Bosnia and Herzegovina

State responsibility Attribution National contingent in United Nations force State placing troops at disposal of United Nations Dutch battalion contingent in UNPROFOR Alleged wrongful conduct of contingent Whether attributable to State Whether attributable to United Nations Whether attributable to both State and United Nations Assessment in accordance with international law United Nations International Law Commission 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts 2011 Draft Articles on the Responsibility of International Organizations Decisive criterion for attribution Factual control Whether Court of Appeal incorrectly applying or interpreting effective control criterion Context for alleged conductWhether alleged conduct unlawful Bosnian law Principles laid down in Articles 2 and 3 of European Convention on Human Rights, 1950 (European Convention) and Articles 6 and 7 of International Covenant on Civil and Political Rights, 1966 (ICCPR) Whether State liable for damages

Relationship of international law and municipal law Treaties Customary international law European Convention, Articles 2 and 3 ICCPR, Articles 6 and 7 Right to life Prohibition of inhuman treatment Whether State having requisite jurisdiction within meaning of Article 1 of European Convention and Article 2(1) of ICCPR Case law of European Court of Human Rights Law of Bosnia and Herzegovina applicable in accordance with Dutch international private law Assessment of wrongful conduct Whether assessment of Court of Appeal correct Whether any basis for exercise of judicial restraint

Jurisdiction Treaties European Convention, Article 1 ICCPR, Article 2(1) Whether State having jurisdiction Whether jurisdiction required to assess disputed conduct by reference to Articles 2 and 3 of European Convention and Articles 6 and 7 of ICCPR Case law of European Court of Human Rights

Whether State competent through its battalion contingent to exercise jurisdiction State's battalion contingent forming part of UNPROFOR Agreement on the Status of UNPROFOR in Bosnia and Herzegovina Whether sufficient basis for view of State's ability to ensure compliance with human rights enshrined in Articles 2 and 3 of European Convention and Articles 6 and 7 of ICCPR The law of the Netherlands

Summary:2The facts:The respondent, Mr Hasan Nuhanovi, was working as an interpreter for the United Nations Military Observers, seconded to the United Nations Protection Force in Bosnia and Herzegovina (UNPROFOR) and forming part of the Dutch battalion of the Airborne Brigade (Dutchbat) of UNPROFOR. UNPROFOR had been established by United Nations Security Council Resolution 743 (1992) as a peacekeeping force following the fighting resulting from the dissolution of the Socialist Federal Republic of Yugoslavia. Dutchbat was one of the national contingents forming UNPROFOR and had been placed at the disposal of the United Nations pursuant to an agreement between the Netherlands and the United Nations.

The mandate of UNPROFOR had been extended to Bosnia and Herzegovina following its declaration of independence in 1992. In 1995 Dutchbat was based in Srebrenica, a Muslim enclave surrounded by the Bosnian Serb army; some of its units were quartered outside the city in abandoned industrial premises in Potocari (the compound). After the fall of Srebrenica on 11 July 1995, the Dutchbat peacekeeping troops withdrew to the compound and evacuation began. The respondent's father (Ibro), mother (Nasiha) and brother (Muhamed) sought refuge at the compound, remaining after other refugees had been evacuated. Although the respondent was entitled to remain in the compound for evacuation with Dutchbat, because he had a United Nations pass and was listed as one of the locally employed personnel of UNPROFOR, Nasiha and Muhamed were not so entitled. Ibro had been told that he could remain in the compound as a member of a civilian committee that had held consultations with General Mladic but chose to

leave with his wife and son. Ibro, Nasiha and Muhamed were all deported by the Bosnian Serbs and subsequently killed. The respondent had claimed that the Netherlands was liable for Dutchbat's allegedly wrongful act of forcing his family to leave the compound and should pay compensation

The Netherlands appealed the judgment of the Court of Appeal of 5 July 2011 (153 ILR 467)3 which had held that Dutchbat's conduct was attributable to the Netherlands since the Netherlands had had effective control over that conduct. It argued that Dutchbat's conduct was only attributable to the United Nations, that international law excluded the possibility that conduct could be attributed to both an international organization and to a State, and that the law on effective control had been incorrectly applied or interpreted. It also challenged the Court of Appeal's assessment of the respondent's allegations against it.4

Held:The appeal was dismissed.

(1) Dutchbat's conduct could be attributed to the Netherlands.

(a) It was undisputed that the attribution question was to be answered solely in accordance with the rules of international law. Those rules developed in unwritten international law were to be established by reference to the United Nations International Law Commission's 2001 Draft Articles on Responsibility of States for Internationally Wrongful Acts (DARS) and the 2011 Draft Articles on the Responsibility of International Organizations (DARIO) (paras. 3.6.23.7).

(b) It followed from Articles 4 and 8 of DARS that Dutchbat's conduct could be attributed to the Netherlands if it was considered one of its organs or had in fact acted on its instructions or under its direction or control (paras. 3.8.13.8.2).

(c) As was implicit in the Court of Appeal's judgment, the Netherlands had placed troops at the disposal of the United Nations in the context of a United Nations peace mission, transferring command and control to the United Nations but retaining disciplinary powers and criminal jurisdiction. As such, it was apparent from the Commentary on Article 7 of DARIO that the Article 7 attribution rule was applicable (paras. 3.9.13.10.2).

(d) International law, in particular Article 7 of DARIO in conjunction with Article 48(1) of DARIO, did not exclude the possibility that conduct could be attributed both to an international organization and to a State (paras. 3.9.4 and 3.11.13.11.2).

(e) It was apparent from the Commentary on Article 7 of DARIO that the attribution of conduct to the seconding State or to the international organization was based on factual control over the specific conduct, taking into account all circumstances and the special context of the case (para. 3.11.3).

(f) In deciding whether the Netherlands had effective control over Dutchbat's disputed conduct, the Court of Appeal had not interpreted or applied the law incorrectly. It had examined, in the light of all circumstances and the special context of the case, whether the Netherlands had factual control over Dutchbat's disputed conduct. It was not necessary for the Netherlands to have given instructions to Dutchbat or to have exercised operational command independently. Although the mission had failed, the Netherlands still had effective control over Dutchbat's conduct within the compound (paras. 3.11.33.14).

(2) Dutchbat's conduct was wrongful.

(a) The Court of Appeal had issued a declaratory ruling that the Netherlands was responsible on grounds of wrongful conduct for the damage that the respondent had suffered and would continue to suffer as a consequence of the death of Muhamed and Ibro. Its conclusion was independently based on its rulings concerning the application of the domestic law of Bosnia and Herzegovina5 which had either not been disputed or had been disputed in vain. Its reasoning based on the law of Bosnia and Herzegovina could not be examined under Dutch law6 (paras. 3.15.13.15.5).

(b) The submissions challenging the assessment of Dutchbat's disputed conduct by reference to the legal principles implicit in Articles 2 and 3 of the European Convention on Human Rights, 1950 (European Convention) and Articles 6 and 7 of the International Covenant on Civil and Political Rights, 1966 (ICCPR), namely the right to life and the prohibition of inhuman treatment, could not result in cassation. That based on the Netherlands not having jurisdiction, as referred to in Article 1 of the European Convention and Article 2(1) of the ICCPR, either in Srebrenica or in the compound in Potocari failed. According to European Court of Human Rights case law, a Contracting State might have jurisdiction even outside its territory in exceptional circumstances7 (paras. 3.15.53.17.2).

(c) The Netherlands was competent, through Dutchbat, to exercise jurisdiction within the meaning of Article 1 of the European Convention. Dutchbat's presence in Srebrenica and in the compound in Potocari resulted from the Netherlands' participation in UNPROFOR. UNPROFOR derived its right to take action in Srebrenica from the Agreement on the Status of the United Nations Protection Force in Bosnia and Herzegovina signed by the United Nations and Bosnia and Herzegovina on 15 May 1993. Under Article 6 of that agreement, the Government of Bosnia and Herzegovina

undertook to respect the exclusively international nature of UNPROFOR (para. 3.17.3)

(d) There was a sufficient basis for the view that the Netherlands, through Dutchbat, was able to ensure compliance with the human rights enshrined in Articles 2 and...