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Responsibility of the Netherlands for the Acts of Dutchbat in Nuhanović and Mustafić: The Continuous Quest for a Tangible Meaning for ‘Effective Control’ in the Context of Peacekeeping

Published online by Cambridge University Press:  02 May 2012

BÉRÉNICE BOUTIN
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Abstract

In Nuhanović and Mustafić (5 July 2011), the Court of Appeal of The Hague held the Netherlands liable under Bosnian torts law in relation to acts of Dutchbat in the days following the fall of Srebrenica. The claims were brought by relatives of victims killed by Mladić's troops after being evicted from the Dutchbat premises, where they had sought refuge. When resorting to international law to attribute the conduct to the Netherlands, the Court shed light on the concrete meaning of ‘effective control’ when a wrongful conduct does not result from direct orders, thereby clarifying some of the questions surrounding the determination of responsibility for conducts in the framework of international organizations.

Keywords

attributioneffective controlliabilityresponsibilitywrongfulness
Type
HAGUE INTERNATIONAL TRIBUNALS: International Criminal Court and Tribunals
Information
Leiden Journal of International Law , Volume 25 , Issue 2 , June 2012 , pp. 521 - 535
Copyright
Copyright © Foundation of the Leiden Journal of International Law 2012

1. Introduction

Two important decisions holding the Netherlands responsible in relation to the conduct of a Dutch battalion of peacekeepers (Dutchbat) in the days that followed the fall of the city of Srebrenica in July 1995 were rendered by the Dutch Court of Appeal of The Hague on 5 July 2011.Footnote 1 In these two quasi-identical judgments, the Court held the Netherlands responsible for the death of Rizo Mustafić, Ibro Nuhanović, and Muhamed Nuhanović following their removal by Dutchbat from the compound in which they had sought refuge. By reversing the first-instance decisions,Footnote 2 the Court of Appeal allowed victims to engage the share of responsibility borne by the Dutch state in relation to the massacre of Srebrenica.Footnote 3 It should be insisted that the claims in the cases at hand did not focus on an alleged failure of Dutchbat to prevent genocide in Srebrenica, and concerned the fate of some of the civilians that had sought refuge in the premises where Dutchbat had pulled back.

The relatively well-known events that gave rise to the claims deserve to be briefly outlined, keeping in mind that some of the factual details were debated by the parties before the Court. Dutchbat was in charge of protecting the area of Srebrenica, as part of the efforts of the United Nations Protection Force (UNPROFOR) during the Yugoslav conflict. The city of Srebrenica and its surroundings were declared a ‘safe area’ by United Nations Security Council Resolution 819Footnote 4 after it had become a Muslim enclave besieged by the Bosnian Serb Army in 1993. The Netherlands was willing to provide a contingent for the implementation of the safe area and Dutchbat took charge of the Srebrenica zone in March 1994.Footnote 5 Most troops were not in the city itself but in an abandoned industrial compound in Potočari, in the city's surroundings. On 11 July 1995, the Bosnian Serb Army, under the command of Mladić, attacked and took over the city of Srebrenica. The Dutchbat troops present in the city retreated to the compound, followed by a flow of civilians seeking refuge in Potočari.Footnote 6 Only part of them could be admitted inside the premises, amongst whom was Hasan Nuhanović, who was working as an interpreter for Dutchbat employed by the United Nations, together with his parents Ibro Nuhanović and Nasiha Nuhanović-Mehinagić and his brother Muhamed Nuhanović,Footnote 7 as well as Rizo Mustafić, an electrician working for Dutchbat, with his wife Mehida Mustafić-Mujić and children Damir and Alma Mustafić.Footnote 8

As military officials understood that the enclave was lostFootnote 9 and that the mission to protect Srebrenica had failed,Footnote 10 it was decided to withdraw Dutchbat and evacuate the compound. How this decision was taken and implemented was a central question in the cases before the Court of Appeal.Footnote 11 During the preparation of the evacuation, Commander of Dutchbat, Karremans, held meetings with Mladić to negotiate the modalities of the withdrawal. Mladić, who assured that he was not targeting the civilian population and was willing to help, became in charge of the evacuation of the refugees.Footnote 12 The Bosnian Serb Army started to take refugees away on 12 July 1995 but, the following day, Dutchbat had received various indications that refugees, specifically able-bodied men, ‘were deported in order to be killed or to suffer serious physical abuse’.Footnote 13 Nevertheless, the evacuation went on, and the last families of refugees left the premises. Rizo Mustafić asked to stay in the compound with his relatives but was ordered to leave. He was subsequently deported and killed.Footnote 14 Because he was employed by the United Nations, Hasan Nuhanović was allowed to evacuate with Dutchbat, but his parents and brother were compelled to leave and were subsequently deported and killed.Footnote 15

The cases at hand concern claims brought by Hasan Nuhanović, Mehida Mustafić-Mujić, and Damir and Alma Mustafić before Dutch courts, intending to hold the Netherlands liable for the deaths of their relatives following their evacuation from the compound of Potočari. They raised difficult issues related to the allocation of responsibility for the wrongful acts of peacekeepers, notably on the attribution of their acts to the United Nations, which was the ground on which the District Court rejected the claims.Footnote 16 On appeal, the Court decided in favour of the victims and held the Netherlands liable for the wrongful removal from the compound of Rizo Mustafić, Ibro Nuhanović, and Muhamed Nuhanović.Footnote 17 Under a detailed application of the test of ‘effective control’, the Court found the conduct of Dutchbat to be attributed to the Netherlands. Further, it held that sending away the last refugees while being aware of the risks constituted a tortious act under Bosnian law, engaging the liability of the state.

This commentary provides an analysis of some of the most relevant features of the Court of Appeal decisions. Section 2 outlines the regime of responsibility that the Court untangled from the intricate claims of public and private international law presented by the parties. The attribution of the acts of Dutchbat to the Netherlands, and the Court's understanding of the notions of ‘effective control’ and ‘ability to prevent’ are analysed in section 3. Section 4 addresses the characterization of the alleged acts as tortious under Bosnian law. Section 5 presents critical remarks on the contribution of the decisions to the debate surrounding the allocation of responsibility between states and international organizations.

2. The mixed regime of responsibility unravelled by the Court

Before determining whether the Netherlands was liable, as alleged by the appellants, the Court needed to clarify the criteria for responsibility applicable to the case. The claims brought by the victims relied primarily on domestic torts,Footnote 18 whereby it suffices for a damage to be caused by Dutchbat for an obligation of reparation to occur. The arguments brought forward by the Dutch state, on the other hand, were firmly grounded in public international lawFootnote 19 under which the conduct of Dutchbat needs to be attributed to the Netherlands and in breach of its international obligations in order to possibly lead to reparation.Footnote 20 The Court assessed each argument and considered that the claims were to be entertained under private law (section 2.1), but would preliminarily have to pass a test of attribution under international law (section 2.2).

2.1. A responsibility assessed under domestic torts

The cases of Nuhanović and Mustafić are not per se judicial findings of international responsibility of a state for the acts of its peacekeepers. The appellants were seeking a pronouncement regarding the responsibility of the Netherlands for the allegedly tortious acts committed by Dutchbat, and accordingly invoked Bosnian legislation on civil obligations, which was applicable pursuant to Dutch private international law.Footnote 21 In their opinion, Bosnian law was applicable to all aspects of the determination of responsibility and its legal consequences, and the contention that the Netherlands was in breach of some international obligations was merely additional to the main liability claim.Footnote 22 The state, on the other hand, maintained that the attribution and wrongfulness of the conduct ‘should only be judged in accordance with international law and therefore not according to any national law’.Footnote 23 The Court agreed with the appellants that the actions of Dutchbat in Bosnia were subject to local Bosnian law,Footnote 24 and entertained the claims under the provisions of this legal order. Accordingly, it determined the conditions under which an act engages liability by reference to the provisions of Bosnian law, notably on questions of causation,Footnote 25 or circumstances precluding wrongfulness.Footnote 26 Ultimately, the liability of the Netherlands was upheld under the law of Bosnia,Footnote 27 which states in a general provision that ‘[a] person who causes damage to the other is obliged to reimburse it, unless he proves that the damage is not his fault’.Footnote 28

It should be underlined that the repeated references made by the Court in Nuhanović and Mustafić to a ‘wrongful act’ – or onrechtmatige daad in Dutch – should not be misunderstood as a reference to the notion of wrongful act as established in international law, and rather mean ‘tort’.Footnote 29 The notion of wrongfulness is not explicitly present in all domestic tort laws,Footnote 30 in the sense that only some legal systems place the breach of a pre-existing legal obligation as a condition for responsibility.Footnote 31 In the present cases, the assessment whether the acts of Dutchbat were ‘wrongful’ was primarily based on a notion of fault.Footnote 32

The choice for the application of Bosnian law was, besides, opportune for the Court, as it allowed it to give a strong political sign towards locals that peacekeepers are accountable for violations of local laws, while bypassing the difficult question of the extraterritorial applicability of human rights treaties.Footnote 33 Indeed, the Court found the International Covenant on Civil and Political Rights to have direct effect in the Bosnian legal order and hence to be applicable to the case.Footnote 34 The right to life and the prohibition of inhuman treatment were also found applicable ‘because these principles, which belong to the most fundamental legal principles of civilized nations, need to be considered as rules of customary international law that have universal validity’.Footnote 35 Substantively, however, the liability was upheld on the basis of a tort and the additional finding of a breach of international norms did not modify the outcome of the case.Footnote 36

The Court entertained the claims primarily under Bosnian law, yet it followed the argument of the state and shifted to international law when deciding whether the acts of Dutchbat were to be attributed to the Netherlands.

2.2. The internationalization of the question of attribution

In the view of the victims, attribution of the conduct of Dutchbat should have taken place only according to national Bosnian law.Footnote 37 As maintained by the appellants, the scope of the applicable law determined under Dutch private international law can include the question of attribution.Footnote 38 The Court, however, chose to distinguish the question of attribution from the question of whether the acts were considered tortious under Bosnian law. It affirmed that the question of whether ‘the actions of these troops that are placed at the disposal of the UN should be attributed to the State, the UN or possibly to both’Footnote 39 was separated from the question of ‘whether the Dutchbat troops acted wrongfully with respect to Nuhanović [and Mustafić et al.]’.Footnote 40

The Court hereby operated what private international lawyers refer to as a dépeçage, which consists of applying rules from several legal orders to a legal question normally governed by one coherent set of norms.Footnote 41 Applying rules from different legal orders to the questions of attribution and wrongfulness challenges the relationship between, and the systemic character of, responsibility regimes and, even though it can well be defended as a substantive approach conducted by an internationalist court, the judges in Nuhanović and Mustafić could have more clearly justified the applicability of international principles of attribution.

The argument made by the Court that Bosnian law provided no specific answer to the questionFootnote 42 was contradicted by the reference it later made to a Bosnian rule on attribution of the conduct of Dutchbat members, ‘who were employed by the State and who caused the damage “in the course of their work or in connection with work”’.Footnote 43 The consideration that international law contains developed principles adapted to ‘cases with transboundary elements’Footnote 44 regarding the attribution of the conduct of peacekeepers is not sufficient, in itself, to justify departing from the law normally applicable on the ground of ‘international harmonization’.Footnote 45 A stronger point can be implied from the Court's analysis placing weight on the transfer of powers over military organs made by the Netherlands.Footnote 46 The international character of the troops materially affects the question of attribution, which is internationalized as a result of the transfer of authority over the troops. Under such a substantive approach, the modified status of the state's organs justifies recourse to international law to appraise whether their acts can regardless be considered a conduct of that state.

The Court next had to ascertain under which international-law criterion attribution should operate, and correctly designated the principle of ‘“effective control” over the relevant conduct’,Footnote 47 as entrenched in Article 7 of the final Draft Articles on the Responsibility of International Organizations.Footnote 48 A few years after the disordered decision of the European Court of Human Rights in Behrami,Footnote 49 it is now agreed that the attribution of the conduct of troops placed at the disposal of an international organization should take place under the standard of ‘effective control’.Footnote 50 The test of ‘ultimate authority and control’Footnote 51 obviously did not permit allocating responsibility to an entity truly linked with the alleged conduct, as such a test can arguably be used to attribute to the UN acts of British troops in Iraq.Footnote 52 The United Nations’ contention that Article 6 DARIO would be more relevant because peacekeepers are subsidiary organs of the United NationsFootnote 53 has also been decried, given that states can never fully delegate military organs and permanently retain full command over them.Footnote 54 This ambiguous organic status of UN peacekeepers, formally under the control of both the United Nations and the troop-contributing state, cannot genuinely answer the question of attribution, and justifies recourse to a factual criterion more adapted to determine which entity was truly in control of troops.Footnote 55 The appropriate determination of ‘effective control’ as the international standard of attribution for the conduct of peacekeepers by the Court in Nuhanović and Mustafić comes as a welcome affirmation by a domestic court of the opinion held by scholars.Footnote 56

Under the mixed regime modelled by the Court, the alleged conduct of Dutchbat had to be attributed to the state under the test of ‘effective control’ and to be tortious under Bosnian law in order to engage the liability of the Netherlands. The application of these conditions by the Court is analysed in the following sections.

3. The attribution of the conduct of Dutchbat to the Netherlands based on its control

The exact meaning of the standard of effective control, specifically in the context of peacekeeping, gave rise to many questions regarding the nature and extent of control required for attribution. In this regard, the detailed reasoning by the Court in the application of an unclear standard to concrete facts constitutes a crucial development that will help to better grasp this notion. The decision adopted a genuine and progressive understanding of the notion of effective control (section 3.1), whose detailed application to the cases led to the attribution of the alleged acts to the Netherlands (section 3.2). Implicitly, the Court established a causal relationship between the effective control of the Netherlands and the acts of its peacekeepers (section 3.3).

3.1. The meaning of ‘effective control’ according to the Court

As demonstrated by the opposite conclusions based on the same standard reached by the District CourtFootnote 57 and the Court of Appeal in regard to the present claims, the precise meaning of the principle of effective control is debated. From the International Law Commission's (ILC's) commentaries, it can be asserted that the control must be factual,Footnote 58 exercised in respect of the specific allegedly wrongful conduct,Footnote 59 and assessed with full account of the circumstances and context of the case. Footnote 60 However, the extent to which the control by the state over an act must be established is unsettled. The position advocated by the United NationsFootnote 61 and adopted by the District Court,Footnote 62 according to which only direct contradictory orders can give a state effective control over its troops, has been rejected by the Court of Appeal,Footnote 63 as well as by a number of scholars who admitted that a state can exercise some effective control over an act that it did not directly order.Footnote 64 Besides, the Court agreed with the appellants that ‘the decisive criterion for attribution is not who exercised “command and control”, but who actually was in possession of “effective control”’.Footnote 65 The legal notion of effective control should indeed be distinguished from the military concepts of command and control, but the two are not mutually exclusive. The Court's formulation is in that sense slightly misleading, for the actual exercise of command and control powers is very relevant to inform the legal criterion of effective control. The elements of command and control specifically possessed and employed by each party in relation to the unlawful act reveal the degree of control effectively exercised over a wrongful conduct.Footnote 66

Importantly, the Court upheld two points debated in scholarship: that the notion of effective control over a conduct goes beyond ordering itFootnote 67 and that control can possibly be exercised by both the state and the United Nations,Footnote 68 opening the way to dual attribution.Footnote 69 First, the Court affirmed that:

significance should be given to the question whether that conduct constituted the execution of a specific instruction, issued by the UN or the State, but also to the question whether, if there was no such specific instruction, the UN or the State had the power to prevent the conduct concerned.Footnote 70

This interpretation acknowledges the limitations of relying on direct orders, given that ‘in many cases, human rights abuses occur at the foot-soldier level, having been ordered neither by the United Nations nor by the relevant state’.Footnote 71 Accordingly, the various ways in which a state uses its authority and influences operations on the field can place it in the position to ensure that no wrongful conduct is committed by peacekeepers.Footnote 72

Second, the Court rejected the concept of exclusive attribution that had been upheld in the first instanceFootnote 73 by considering that ‘the possibility that more than one party has “effective control” is generally accepted, which means that it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party’.Footnote 74 Informed by the increasing number of situations where competences and powers are shared between states and international organizations,Footnote 75 there is indeed growing doctrinal support for multiple attribution,Footnote 76 notably in the paradigmatic example of peacekeeping operations.Footnote 77 On the basis of this understanding, the Court demonstrated that the Netherlands was indeed exercising effective control over the alleged acts of Dutchbat.

3.2. The factual analysis conducted by the Court

The Court's analysis purported to determine ‘which entity was positioned to have acted differently in a way that would have prevented the impugned conduct’.Footnote 78 It engaged in a very detailed analysis of the facts in order to determine whether and to what extent the Dutch state had effective control over the alleged conducts, notably over the act of evicting the victims from the compound. Particular importance was placed on the circumstances that led the state to assert control over its soldiers. After the fall of Srebrenica, the situation indeed differed ‘in a significant degree from the situation in which troops placed under the command of the UN normally operate’,Footnote 79 for Dutchbat was going to withdraw from the mission after evacuating the refugees.Footnote 80 During what the Court referred to as a ‘transition period’,Footnote 81 national interests were directly involved,Footnote 82 which prompted the Dutch state to exert substantial influence over the evacuation of the refugees that amounted to effective control.

The Court demonstrated that, during this transition period and specifically with regard to the evacuation of the refugees, Dutchbat was acting under the joint command of the United Nations and the Netherlands. The state was fully and directly implicated in the decision-making at all levels.Footnote 83 The decision that both Dutchbat and the refugees needed to be evacuated was jointly taken at the highest level by the UNPROFOR force commander, General Janvier, the Dutch defense chief of staff, Van den Breemen, and the deputy commander of the Royal Netherlands Army, Commander Van Baal,Footnote 84 thus on behalf of both the United Nations and the Netherlands.Footnote 85 On the field, Brigade General Nicolai, who was chief of staff of HQ UNPROFOR, the division of UNPROFOR located in Sarajevo, ‘fulfilled a double role’,Footnote 86 acting on behalf of both the United Nations and the Dutch state,Footnote 87 because he was the highest-ranking Dutch military official close to the situation.Footnote 88 The commander of Dutchbat, Lieutenant Colonel Karremans, ‘also held the view that he was now (jointly) under command of the Dutch Government’.Footnote 89 Accordingly, the victims were evacuated by Dutchbat following a decision jointly taken by the Netherlands and the United Nations. The Court also established the specific and effective control of the state over the modalities of the evacuation. Through several channels, including calls from Minister of Defense Voorhoeve, instructions were passed to Dutchbat, notably to not ‘cooperate in a separate treatment of the men’Footnote 90 and to ‘save as much as possible’.Footnote 91 As insisted in the decisions, ‘it was a matter of orders being given’Footnote 92 and, accordingly, the control of the Netherlands ‘was not only theoretical, this control was also exercised in practice’.Footnote 93

The Court considered that the eviction by Dutchbat of the victims in these cases was ‘directly related to the Dutch Government's decisions and instructions’ before concluding that the conduct was attributed to the state.Footnote 94 In the closure of its reasoning, the Court thereby seems to imply that attribution resulted from the correlation between the control exercised by the Netherlands and the act of evicting the victims. This implicit causal link established by the Court is discussed in the following section.

3.3. The underlying determination of a causal link between the control of the state and the conduct by Dutchbat

Any claim for responsibility is based on one or more specific acts that are contended as tortious or wrongful, which means that the determination of the alleged conduct is a preliminary step in assessing liability. Particularly, when applying Article 7 DARIO, a court is required to apply the test to each ‘specifically impugned conduct’.Footnote 95 For that purpose, several acts of Dutchbat were invoked by Nuhanović and Mustafić et al. on the basis of their claims, amongst which figured (i) the act of sending the victims away from the compound, (ii) the failure to take action when the males and females were separated under the eyes of Dutchbat, and (iii) the omission to report human rights violations.Footnote 96 In its reasoning on attribution, the Court focused on the decision to evacuate and more importantly on ‘the manner in which the evacuation of the refugees was carried out’Footnote 97 by Dutchbat, which encompasses the acts alleged by the victims. The Court demonstrated the exercise of a close control by the Netherlands over Dutchbat with regard to the evacuation but, to attribute the specific act of evicting the victims of the cases, which did not result from a direct order, the Court had to take a further step.

By affirming ‘that the Dutch Government . . . would have had the power to prevent the alleged conduct if it had been aware of this conduct at the time’Footnote 98 and ‘that, in case the Dutch Government would have given the instruction to Dutchbat not to allow [the victims of the cases] to leave the compound or to take [them] along respectively, such an instruction would have been executed’,Footnote 99 the Court gave a concrete meaning to the notion of effective control in the absence of direct orders. When asking whether the state had had ‘the power to prevent the alleged conduct’,Footnote 100 the Court in effect determined that the conduct was caused by the state. Indeed, the question ‘whether the State had the power to prevent the conduct by Dutchbat’ becomes, in other words, ‘whether the State caused the conduct by Dutchbat by the control it exercised’.Footnote 101 This causal link is what the Court determined when concluding that the evacuation of the victims was ‘related to’Footnote 102 the control over the evacuation. The Court's holding on this point illustrates that, even though causation is not expressly required by the ILC Draft Articles, it becomes inescapable to consider it with regard to attribution of conducts that were not ordered.

4. The assessment of the tortious character of the conduct

As explained above,Footnote 103 the Court assessed the wrongfulness of the attributed conduct under the provisions of Bosnian law.Footnote 104 For the purpose of upholding the claims of the victims, it only needed to qualify the alleged conduct as constituting a tort and not, as argued by the state, to demonstrate the breach by the state of a specific subjective right owned by the victims.Footnote 105 Since the Court found the alleged act of evicting the victims to be wrongful and upheld the liability claims on this ground, it did not further enquire whether the passive attitude towards the separation of men and the failure to report human rights abuses were also tortious.Footnote 106

The tortious character of the conduct was mostly characterized by the knowledge of the risks that Dutchbat had at the time the Nuhanović and Mustafić families had to leave the compound.Footnote 107 The specific context of the cases was again notably relevant, as both families were the very last to leave the premises in the evening of 13 July 1995.Footnote 108 By that time, various military officers had reported that male refugees taken by Mladić were executed or tortured, establishing the fact that Dutchbat was aware of the risks faced by the refugees after their evacuation.Footnote 109 Regarding the eviction of Nasiha Nuhanović-Mehinagić, however, the Court found no fault because the risk was lower for women.Footnote 110

Muhamed Nuhanović and Rizo Mustafić were evicted against their will, following an explicit refusal by deputy commander of Dutchbat Major Franken to take them along.Footnote 111 Besides, none of the justifications brought forward by the state held ground, notably, as, under a test of reasonableness, the decision to not take Muhamed Nuhanović and Rizo Mustafić along could not be vindicated by the Netherlands.Footnote 112 According to the Court, ‘Dutchbat should have reconsidered that decision according to the current situation at that time’Footnote 113 and committed a tort by sending away Muhamed Nuhanović and Rizo Mustafić despite the real risks they ran.Footnote 114 The required causal link between the act and the damageFootnote 115 was demonstrated by the consideration that Muhamed Nuhanović and Rizo Mustafić would still be alive if they had not been forced to leave.Footnote 116 The situation of Ibro Nuhanović slightly differed, as he had been allowed to evacuate with Dutchbat, but decided to leave when his son and wife were evicted. The Court found the state liable regarding his death on the grounds that it had been caused by the eviction of his son.Footnote 117

Additionally, the Court considered the wrongfulness of the conduct with regard to the international principles of the right to life and the prohibition of inhuman treatment. The Court mentioned without further elaboration that the conduct of Dutchbat incidentally breached the obligation not ‘to surrender civilians to the armed forces if there is a real and predictable risk that the latter will kill or submit these civilians to inhuman treatment’.Footnote 118 For these reasons, the Court concluded that the Netherlands was responsible for the deaths of Muhamed Nuhanović, Ibro Nuhanović, and Rizo Mustafić.

The Court insisted that it was not taking any position regarding other victims of the evacuation and only looked at the situation of the four victims for which liability of the Netherlands was alleged.Footnote 119 The eviction of refugees who left earlier or voluntarily would not necessarily be tortious;Footnote 120 nonetheless, possibly, further claims against the Dutch state with regard to the evacuation could be envisaged. The conclusions of the Court of Appeal regarding attribution admitted that the failure of Dutchbat to take action when the Nuhanović and Mustafić families were separated by the Bosnian Serb Army was also attributable to the NetherlandsFootnote 121 – conduct that the District Court had acknowledged as wrongful.Footnote 122 Arguably, relatives of victims who were forcibly evacuated on 13 July 1995 while Dutchbat was aware that the Bosnian Serb Army was committing crimes against the evacuated refugees could successfully invoke the liability of the Netherlands.

5. Concluding remarks

The cases of Nuhanović and Mustafić are firstly remarkable for having provided remedies to victims of acts of peacekeepers. Given the glaring lack of judicial forum to bring claims against the United Nations,Footnote 123 engaging the liability of a troop-contributing state practically enables victims to obtain redress for the wrongful conduct of peacekeeping forces. Besides, further similar decisions holding troop-contributing states responsible could possibly prompt states to develop more effective mechanisms of redress within the United Nations.

Furthermore, the Court's interpretation of Article 7 DARIO in terms of ‘power to prevent’ that enabled engaging the responsibility of the state presents substantial value for the ongoing debate on the notion of effective control. Not only did the decisions discard formalist interpretations of effective control, but they adopted a progressive view that broadens the scope of responsibility of troop-contributing states.Footnote 124 Upholding the responsibility of states for the troops they put at the disposal of the United Nations could be feared as resulting in an unwillingness of states to participate in UN operations. However, under the interpretation of ‘effective control’ maintained by the Court, acts are only attributed to states in circumstances under which they actually exercised control over their troops. Accordingly, this standard for attribution ensures that ‘the actors concerned exercise due precaution in making sure that breaches do not occur’Footnote 125 in the first place, thereby ‘structuring incentives so as to minimize violations’.Footnote 126

Although the Court did not expressly take a position on the matter, the attribution to the United Nations of the same acts is conceivable under the circumstances of the cases.Footnote 127 When assessing damages under Bosnian law in its final decision,Footnote 128 the Court will dispose of domestic tools under which the possible responsibility of the United Nations does not impair the amount of the reparations to be paid. An international court reaching a similar conclusion of shared responsibility between a state and an organization could, on the contrary, face obstacles regarding the allocation of damages between the responsible entities.Footnote 129 A discussion of the consequences of situations of shared responsibility between a state and the United Nations would go beyond this case note, but it is worth briefly mentioning that the question of apportionment of remedies for a wrongful act for which more than one entity is responsible receives no answer in international law.Footnote 130 Authors advocating dual attribution in peacekeeping usually maintain joint and several liability as an obvious consequence;Footnote 131 however, the implementation of such a principle in international law is not without difficulties.Footnote 132

It is notable that, while, during the first peacekeeping operations, the question was whether the United Nations could be responsible,Footnote 133 the issue has nowadays reversed. The general debate on the conditions under which member states could be responsible for the acts they accomplish in the framework of an international organization is illustrated in the cases of Nuhanović and Mustafić, in which the Court of Appeal reached beyond the formal transfer of authority to the United Nations. In that sense, effective control was ‘construed so as to claim reparation from the very same entity which has effectively perpetrated the breach in question, whatever the relevance of the corporate veil’.Footnote 134

For all the complex issues they discuss in international terms, the domestic cases of Nuhanović and Mustafić are without a doubt a significant contribution to the settlement of the international law of responsibility, providing appealing insights to the concrete signification of principles recurrently debated in literature. Courts that will subsequently be faced with the application of the test of ‘effective control’ would be inspired to take into account the present decisions.

References

1 Hasan Nuhanović v. the Netherlands, Court of Appeal in The Hague, Civil Law Section (5 July 2011), LJN: BR5388; 200.020.174/01; ILDC 1742 (NL 2011), English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5388 (hereinafter, Nuhanović); Mehida Mustafić-Mujić, Damir Mustafić, and Alma Mustafić v. the Netherlands, Court of Appeal in The Hague, Civil Law Section (5 July 2011), LJN: BR5386; 200.020.173/01, English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BR5386 (hereinafter, Mustafić).

2 H. N. v. the Netherlands, District Court in The Hague, Civil Law Section (10 September 2008), LJN: BF0181; 265615/HA ZA 06-1671; ILDC 1092 (NL 2008), English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0181 (hereinafter, Nuhanović, first instance); M. M.-M., D. M. and A. M. v. the Netherlands, District Court in The Hague, Civil Law Section (10 September 2008), LJN: BF0182; 265618/HA ZA 06-1672, English translation available at http://zoeken.rechtspraak.nl/detailpage.aspx?ljn=BF0182 (hereinafter, Mustafić, first instance).

3 The Court of Appeal has, however, not yet decided on the question of damages, as a time extension was granted to the victims for collecting evidence with regard to one of their claims concerning the replacement of a judge in the District Court trial; see Nuhanović and Mustafić, supra note 1, para. 8.5.

4 UN Doc. S/RES/819 (1993).

5 Nuhanović and Mustafić, supra note 1, para. 2.11.

6 Ibid., para. 2.14.

7 Nuhanović, supra note 1, para. 2.28.

8 Mustafić, supra note 1, para. 2.28.

9 Nuhanović and Mustafić, supra note 1, para. 2.19.

10 Ibid., para. 5.11.

11 See section 3.2, infra.

12 Nuhanović and Mustafić, supra note 1, para. 2.18.

13 Ibid., para. 6.7.

14 Mustafić, supra note 1, para. 2.29.

15 Nuhanović, supra note 1, para. 2.29.

16 Nuhanović, first instance, supra note 2, para. 4.15; Mustafić, first instance, supra note 2, para. 4.17.

17 See note 3, supra, and accompanying text.

18 Nuhanović and Mustafić, supra note 1, para. 5.2. In Mustafić, it was also submitted that the state was contractually liable for breach of a ‘protection agreement’ with Mustafić (para. 5.2), but this argument was dismissed, as the existence of such an agreement could not be established (para. 5.3.1).

19 Nuhanović and Mustafić, supra note 1, para. 5.5.

20 ILC Draft Articles on the Responsibility of States for Internationally Wrongful Acts, 2001 YILC, Vol. 53 II (Part Two), at 26; General Assembly Resolution 56/83 of 12 December 2001, Annex, UN Doc. A/RES/56/83, Art. 2.

21 Wet van 11 april 2001 houdende regeling van het conflictenrecht met betrekking tot verbintenissen uit onrechtmatige daad, Stb 2001, 190 (‘Wet conflictenrecht onrechtmatige daad’), Art. 3(1).

22 Nuhanović and Mustafić, supra note 1, paras. 6.3, 6.4.

23 Ibid., para. 5.5

24 Ibid., para. 5.5: the actions of Dutchbat in Bosnia ‘are not released from the scope of the national law of that country and may in principle give rise to . . . liability resulting from a wrongful act under Bosnian law.’

25 Ibid., para. 6.14.

26 Ibid., para. 6.9.

27 Ibid., para. 6.20.

28 Art. 154(1) of the 1995 ‘Act on Obligations’ of Bosnia and Herzegovina; translation reproduced in Nuhanović and Mustafić, first instance, supra note 2, at note 11.

29 Onrechtmatige daad was translated as ‘tort’ in J. Drion et al., The Netherlands Civil Code, Book 6: The Law of Obligations: Draft Text and Commentary, edited by the Netherlands Ministry of Justice (1977), 44; H. Warendorf et al., The Civil Code of the Netherlands (2009), 677.

30 M. Fabre-Magnan, Les obligations (2004), 755; M. Puech, L'illicéité dans la résponsabilié civile extracontractuelle (1973), 19.

31 H. Deschenaux and P. Tercier, La responsabilité civile (1975), 71.

32 See section 4, infra.

33 The District Court had denied applicability of the European Convention on Human Rights: Nuhanović, first instance, supra note 2, para. 4.12.3; Mustafić, first instance, supra note 2, para. 4.14.2.

34 Nuhanović and Mustafić, supra note 1, para. 6.4.

35 Ibid., para. 6.3.

36 Ibid., paras. 5.5, 6.8.

37 Ibid., para. 5.2.

38 Wet conflictenrecht onrechtmatige daad, supra note 21, Art. 7.

39 Nuhanović, supra note 1, para. 5.3; Mustafić, supra note 1, para. 5.3.2.

40 Ibid.

41 P. Mayer and V. Heuzé, Droit international privé (2004), 525.

42 Nuhanović and Mustafić, supra note 1, para. 5.4.

43 Nuhanović and Mustafić, supra note 1, para. 6.20, applying Art. 171(1) of the ‘Act on Obligations’ of Bosnia and Herzegovina.

44 Nollkaemper, A., ‘Internationally Wrongful Acts in Domestic Courts’, (2007) 101 AJIL 760Google Scholar, at 785.

45 Nuhanović and Mustafić, supra note 1, para. 5.4.

46 Nuhanović, supra note 1, para. 5.3; Mustafić, supra note 1, para. 5.3.2.

47 Nuhanović and Mustafić, supra note 1, para. 5.8.

48 ILC Draft Articles on the Responsibility of International Organizations, 2011 YILC, Vol. 63 II (Part Two), at 54 (hereinafter, DARIO). The text of the Article remained unchanged from the 2009 Draft Article 6 to which the Court refers: ‘The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.’

49 European Court of Human Right, Behrami and Behrami v. France, App. No. 71412/01, and Saramati v. France, Germany and Norway, App. No. 78166/01 (2 May 2007).

50 ILC Draft Articles on the Responsibility of International Organizations with commentaries, 2011 YILC, Vol. 63 II (Part Two), 69, at 87 (hereinafter, ‘DARIO commentaries’), commentary to Art. 7, para. 1; Dannenbaum, T., ‘Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should Be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers’, (2010) 51 Harv. ILJ 113Google Scholar, at 140; Kondoch, B., ‘The Responsibility of Peacekeepers, Their Sending States, and International Organizations’, in Gill, T. and Fleck, D. (eds.), The Handbook of the International Law of Military Operations (2010), 515, at 521Google Scholar; Tsagourias, N., ‘The Responsibility of International Organisations for Military Missions’, in Odello, M. and Ryszard, P. (eds.), International Military Missions and International Law (2011), 245, at 249CrossRefGoogle Scholar.

51 Behrami, supra note 49, para. 140.

52 This was unsuccessfully argued by the United Kingdom before the European Court of Human Rights in Al-Jedda (App. No. 27021/08, 7 July 2011); see Milanovic, M., ‘Al-Skeini and Al-Jedda in Strasbourg’, (2012) 23 EJILCrossRefGoogle Scholar (forthcoming), available at SSRN, http://ssrn.com/abstract=1917395, at 19.

53 ILC, ‘Responsibility of International Organizations, Comments and Observations from the UN’ (17 February 2011), UN Doc. A/CN.4/637/Add.1 (hereinafter, ‘UN Comments to DARIO’), comments to Draft Art. 6, para. 3.

54 Condorelli, L., ‘Le statut des forces de l'ONU et le droit international humanitaire’, (1995) 78 Rivista di diritto internazionale 881, at 886Google Scholar; Dannenbaum, supra note 50, at 148; M. Zwanenburg, Accountability of Peace Support Operations (2005), at 40. The Court likewise noted that soldiers ‘are and will remain employed by the state’, para. 5.10.

55 Orakhelashvili, A., ‘Division of Reparation between Responsible Entities’, in Crawford, J. et al. (eds.), The Law of International Responsibility (2010), 647, at 654Google Scholar; Tsagourias, supra note 50, at 249.

56 The decisions in Nuhanović and Mustafić are referred to in the DARIO commentaries, supra note 50, commentary to Art. 7, para. 14.

57 Nuhanović, first instance, supra note 2, paras. 4.10, 4.11; Mustafić, first instance, supra note 2, paras. 4.12, 4.13.

58 DARIO commentaries, supra note 50, commentary to Art. 7, para. 9.

59 Ibid., paras. 4, 8.

60 Ibid., para. 4; Giorgio Gaja, Eighth Report on Responsibility of International Organizations by the Special Rapporteur, UN Doc. A/CN.4/640 (2011), para. 34.

61 The UN is reluctant to admit the possibility of not controlling its troops and maintains the view that, as long as the state's authority ‘does not interfere with the United Nations operational control, it is of no relevance for the purpose of attribution’ (UN Comments to DARIO, supra note 53, comments to Draft Art. 6, para. 4).

62 Nuhanović, first instance, supra note 2, para. 4.14.1; Mustafić, first instance, supra note 2, para. 4.16.1.

63 Nuhanović and Mustafić, supra note 1, para. 5.9.

64 B. Amrallah, ‘The International Responsibility of the United Nations for Activities Carried Out by UN Peace-Keeping Forces’, (1976) 32 Revue égyptienne de droit international 57, at 66; Condorelli, supra note 54, at 897; Dannenbaum, supra note 50, at 154; Leck, C., ‘International Responsibility in United Nations Peacekeeping Operations: Command and Control Arrangements and the Attribution of Conduct’, (2009) 10 Melb. JIL 346Google Scholar, at 359; Sorel, J.-M., ‘La responsabilité des Nations Unies dans les opérations de maintien de la paix’, (2001) 3 International Law Forum du Droit International 127, at 137CrossRefGoogle Scholar.

65 Nuhanović and Mustafić, supra note 1, para. 5.7.

66 B. Cathcart, ‘Command and Control in Military Operations’, in Gill and Fleck, supra note 50, 235, at 236; Leck, supra note 64, at 363; Tsagourias, supra note 50, at 249.

67 Nuhanović and Mustafić, supra note 1, para. 5.9.

68 Ibid.

69 See Nollkaemper, A., ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’, (2011) 9 JICJ 1143Google Scholar, at 1157.

70 Nuhanović and Mustafić, supra note 1, para. 5.9 (emphasis added). The Court's language is very close to that used in the argument of Dannenbaum, supra note 50.

71 Dannenbaum, supra note 50, at 156.

72 Ibid., at 157; see also, Leck, supra note 64, suggesting to ‘take into account various factors, such as whether the parties exercised due care in preventing wilful or negligent actions or omissions and the degree to which they did’, at 359.

73 Nuhanović, first instance, supra note 2, para. 4.15; Mustafić, first instance, supra note 2, para. 4.17.

74 Nuhanović and Mustafić, supra note 1, para. 5.9.

75 See, generally, on shared responsibility, www.sharesproject.nl.

76 See, e.g., Dominicé, C., ‘Attribution of Conduct to Multiple States and the Implication of a State in the Act of Another State’, in Crawford, J. et al. (eds.), The Law of International Responsibility (2010), 281Google Scholar; Besson, S., ‘La pluralité d’États responsables: Vers une solidarité internationale?’, (2007) 17 Revue suisse de droit international et de droit européen 13Google Scholar; A. Nollkaemper and D. Jacobs, ‘Shared Responsibility in International Law: A Concept Paper’, (2011) ACIL Research Paper No 2011-07 (SHARES Series); Orakhelashvili, A., ‘Division of Reparation between Responsible Entities’, in Crawford, J. et al. (eds.), The Law of International Responsibility (2010), 647, at 654Google Scholar; Talmon, S., ‘A Plurality of Responsible Actors: International Responsibility for Acts of the Coalition Provisional Authority in Iraq’, in Shiner, P. and Williams, A. (eds.), The Iraq War and International Law (2008), 185Google Scholar.

77 Bell, C., ‘Reassessing Multiple Attribution: The International Law Commission and the Behrami and Saramati Decision’, (2010) 42 NYUJILP 501Google Scholar; Dannenbaum, supra note 50; Kondoch, supra note 50, at 593; Larsen, K., ‘Attribution of Conduct in Peace Operations: The “Ultimate Authority and Control” Test’, (2008) 19 EJIL 509CrossRefGoogle Scholar, at 518; Leck, supra note 64, at 363; Tsagourias, supra note 50, at 253; Zwanenburg, supra note 54, at 103.

78 Dannenbaum, supra note 50, at 157.

79 Nuhanović and Mustafić, supra note 1, para. 5.11.

80 Ibid., paras. 5.11, 5.17.

81 Ibid., para. 5.17.

82 Ibid., paras. 5.12, 5.13.

83 Ibid., para. 5.13.

84 Ibid., paras. 5.11, 5.12.

85 Ibid., para. 5.12.

86 Ibid., para. 5.18.

87 Ibid., para. 5.13.

88 Ibid., para. 5.15.

89 Ibid., para. 5.18.

90 Ibid., para. 5.18.

91 Ibid., para. 5.18.

92 Ibid., para. 5.18.

93 Ibid., para. 5.18.

94 Ibid., para. 5.20.

95 Dannenbaum, supra note 50, at 141; see also Leck, supra note 64, at 348.

96 Nuhanović and Mustafić, supra note 1, para. 6.1.

97 Ibid., para. 5.19.

98 Ibid., para. 5.18.

99 Ibid.

100 Ibid.

101 See also Orakhelashvili, supra note 55, at 654: ‘a substantial degree of factual control over the contingent or the relevant situation allows identifying a link of cause-and-effect between the entity and the wrongful act.’

102 Nuhanović and Mustafić, para. 5.19.

103 See section 2.1, supra.

104 Nuhanović and Mustafić, supra note 1, para. 6.3.

105 Ibid., para. 6.14: ‘Although the State disputes that Dutchbat had the obligation to take [the victims of the cases] along to a safe area, in establishing the causal relationship it is not relevant – also under Bosnian law – whether the State had the obligation to take [them] to a safe area, but to find out what would have happened if the State had not acted wrongfully.’

106 Ibid., para. 6.22.

107 Ibid., para. 6.11.

108 Ibid., paras. 6.7, 6.11.

109 Ibid., para. 2.27.

110 Nuhanović, supra note 1, para. 6.20.

111 Nuhanović and Mustafić, supra note 1, para. 6.10.

112 Ibid., para. 6.18.

113 Ibid., para. 6.11.

114 Ibid., para. 6.14.

115 Ibid., para. 6.5.

116 Ibid., para. 6.14.

117 Nuhanović, supra note 1, para. 6.20.

118 Nuhanović and Mustafić, supra note 1, para. 6.8.

119 Ibid., para. 6.11.

120 Ibid.

121 Ibid., para. 5.19.

122 Nuhanović, first instance, supra note 2, para. 4.14.6; Mustafić, first instance, supra note 2, para. 4.16.6.

123 Dannenbaum, supra note 50, at 124.

124 Ibid., at 114.

125 Leck, supra note 64, at 363.

126 Dannenbaum, supra note 50, at 157.

127 Nuhanović and Mustafić, supra note 1, para. 5.18.

128 Ibid., para. 6.21.

129 See A. Nollkaemper, ‘Issues of Shared Responsibility before the International Court of Justice’, (2011) ACIL Research Paper No 2011–01 (SHARES Series).

130 I. Brownlie, System of the Law of Nations, Part I: State Responsibility (1983), 189; Noyes, J. and Smith, B., ‘State Responsibility and the Principle of Joint and Several Liability’, (1988) 13 Yale JIL 225Google Scholar, at 225.

131 Dannenbaum, supra note 50, at 169; Leck, supra note 64, at 363; Orakhelashvili, supra note 55.

132 See International Tin Council case, [1990] 2 AC 418, at 480: Lord Templeman expressed the view that ‘[a]n international law or a domestic law which imposed and enforced joint and several liability on 23 sovereign states without imposing and enforcing contribution between those states would be devoid of logic and justice’.

133 Amrallah, supra note 64, at 58.

134 Orakhelashvili, supra note 55, at 654.