Nuhanovic v Netherlands [The Netherlands, Court of Appeal of The Hague.]

• Jurisdiction: Holanda
• Judge: Dupain,Boele,Dulek-Schermers
• Judgment Date: 05 July 2011
• Date: 05 July 2011
• Court: Gerechtshof Den Haag (Nederland)

The Netherlands, Court of Appeal of The Hague.

(Dupain, Boele and Dulek-Schermers, Justices)

Nuhanovi

and

Netherlands1

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 contingentWhether attributable to State Whether attributable to United Nations Whether attributable to both State and United Nations Assessment in accordance with international law Decisive criterion for attribution Effective control Context for alleged conduct Whether alleged conduct unlawful Bosnian law Principles laid down in Articles 6 and 7 of International Covenant on Civil and Political Rights, 1966 Whether State liable for damages

Relationship of international law and municipal law Treaties Customary international law European Convention on Human Rights, 1950, Articles 2 and 3 International Covenant on Civil and Political Rights, 1966 (ICCPR), Articles 6 and 7 Right to life Prohibition of inhuman treatment Fundamental legal principles of civilized nations Universally valid Binding upon State Bosnia and Herzegovina party to ICCPR ICCPR constituting part of Bosnian law ICCPR provisions having priority over Bosnian law in event of inconsistencyConstitution of Bosnia and Herzegovina, Article 3 Alleged wrongful conduct to be tested against law of Bosnia and Herzegovina in accordance with Dutch international private law Alleged wrongful conduct to be tested against legal principles contained in European Convention and ICCPR The law of the Netherlands

Summary:2The facts:The appellant, 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 (the compound). After the fall of Srebrenica on 11 July 1995, Dutchbat troops withdrew to the compound and evacuation began. The appellant's father, mother and brother sought refuge at the compound, remaining after other refugees had been evacuated. The appellant was entitled to remain in the compound for evacuation with Dutchbat, because he had a UN pass and was listed as one of the locally employed personnel of UNPROFOR. The appellant's mother, Nasiha, and brother, Muhamed, were not so entitled. Although the appellant's father, Ibro, had been told that he could remain as a member of a civilian committee that had held consultations with General Mladi, he chose to leave the compound with his wife and son. All three were deported by the Bosnian Serbs and subsequently killed.

The District Court held that Dutchbat's conduct was attributable exclusively to the United Nations.3 The appellant appealed. He claimed inter alia that the Netherlands was liable for Dutchbat's allegedly wrongful act of forcing his family to leave the compound and should pay compensation. The appellant argued that the attribution of Dutchbat's conduct should be assessed according to Bosnian law.

Held: Dutchbat's conduct was attributable to the Netherlands since the Netherlands had effective control over that conduct.

(1) Questions concerning the attribution of actions of troops at the disposal of the United Nations, the status of agreements between a sovereign State and an international organization such as the United Nations and liability under civil law were to be answered in accordance with international law (paras. 5.35.5).

(2) Dutchbat had been placed under the command of the United Nations. It was reasonable to conclude from the agreement between the Netherlands and the United Nations that the Dutch battalion was to operate within the United Nations command structure and under the ultimate authority of the Security Council. The authority of the Security Council was confirmed in Security Council Resolution 743 (1992). Dutchbat had in practice operated under United Nations command (paras. 5.65.7).

(3) The decisive criterion for attributing the conduct of Dutchbat to the United Nations or to the State was the possession of effective control rather than the exercise of command and control. This was the generally accepted opinion in international law literature and in the work of the International Law Commission. It was also confirmed in Article 6 of the ILC's draft articles on the Responsibility of International Organizations4 (para. 5.8).

(4) Whether the State had effective control over the conduct of Dutchbat depended upon the circumstances of the case and, in particular, whether the conduct in question was performed pursuant to a specific instruction issued by the United Nations or the State or, in the absence of such an order, whether it was the United Nations or the State which had the power to prevent the conduct concerned. Since it was possible for more than one party to have effective control, attribution to more than one party was possible. The question to be examined, therefore, was whether the State had effective control over the alleged conduct, not whether the UN also had effective control. It was undisputed that the State providing the troops retained control over their participation and all personnel matters, since the soldiers remained in the employ of the State (paras. 5.95.10).

(5) The context in which the alleged conduct of Dutchbat took place differed significantly from the situation in which troops placed under United Nations command normally operated. The protection mission had failed; the only option was to evacuate Dutchbat and the refugees and to proceed so that the refugees would not remain unprotected. During the transition period the United Nations and the Dutch Government both had control over Dutchbat. The Dutch Government had the power to prevent the alleged conduct had it been aware of the conduct at the time. The alleged conduct was contrary to United Nations instructions to protect the refugees so far as was possible. The appellant's allegations concerning Dutchbat's conduct were directly related to the Dutch Government's decisions and instructions (paras. 5.115.19).

(6) The alleged conduct of Dutchbat was to be tested against Bosnian law, in accordance with Dutch private international law, and the legal principles contained in Articles 2 and 3 of the European Convention on Human Rights, 1950, and Articles 6 and 7 of the International Covenant on Civil and Political Rights, 1966, namely the right to life and the prohibition of inhuman

treatment. These most fundamental of legal principles of civilized nations were rules of customary international law having universal validity and binding the State. Since Bosnia and Herzegovina was a party to the ICCPR, its Articles 6 and 7 constituted part of Bosnian law pursuant to Article 3 of its Constitution and had priority over any inconsistent provisions (paras. 6.16.4)

(7) Under Bosnian law and the principles laid down in Articles 6 and 7 of the ICCPR, Dutchbat had no right to send Muhamed Nuhanovi away from the compound since, as an able-bodied man, there was a real and predictable risk that he would be killed or subjected to inhuman treatment by Bosnian Serb armed forces. The State had therefore acted wrongfully towards Muhamed and was liable for damages. Although the State had not acted wrongfully towards Ibro, who had permission to stay in the compound, it was liable for damages since his death resulted from Muhamed's wrongful eviction. It had not been established that the State had acted wrongfully in the case of Nasiha (paras. 6.56.22).

The following is the text of the judgment of the Court:

THE PROCEEDINGS

By bailiff's notification of 26 November 2008, Nuhanovi lodged an appeal against the judgment delivered between the parties by the District Court in The Hague on 10 September 2008. By statement of appeal (with exhibits) Nuhanovi brought forward fifteen grounds for appeal against the contested judgment and increased their claim. In its statement of defence on appeal the State contested the grounds for appeal. On 21 April 2011, at the hearing of the Court of Appeal the parties had their cases pleaded, Nuhanovi by Mr L. Zegveld and Mr A. B. Scheltema Beduin, lawyers in Amsterdam, and the State by its lawyer, as well as Mr K. Teuben, lawyer in The Hague, both parties based on written pleadings submitted to the Court of Appeal. Nuhanovi also addressed the Court on his own behalf. Finally both parties applied for judgment.

ASSESSMENT OF THE APPEAL

1. Introduction

1.1 In its contested judgment the District Court established a number of facts under 2.12.19. In ground 1, Nuhanovi brings forward that in so far as the District Court did not or did not completely establish the facts as argued in the statement of appeal and in the first instance by Nuhanovi and did not make them serve as the basis for its judgment, he considers this was done wrongly. In addition to this general grievance...