Facilitating drone strikes: sharing responsibility for sharing intelligence

 Posted by: Nedeski Nataša

The exchange of information between Dutch intelligence services and the United States National Security Agency (NSA) is no longer taking place entirely outside the public eye. After a graph published in German news magazine Der Spiegel in August 2013 initially seemed to suggest that the NSA had intercepted 1.8 million records of metadata from Dutch phone calls in the period of December 2012 to January 2013, it became clear this February that Dutch intelligence services had gathered these records themselves, and had subsequently shared them with the NSA. This information consisted of metadata records gathered in the context of anti-terrorism and military operations abroad.

A substantial share of Dutch intelligence efforts is directed towards Somalia, and millions of Somali phone calls have been intercepted from both the Dutch town of Burum and Dutch navy ship HMS Rotterdam. The Netherlands has been collecting this information in order to support the Dutch contribution to the navy missions combating piracy in the Gulf of Aden. The (meta)data is shared with the NSA (who do not have access to Somali telephone traffic) and in return the US has provided the Netherlands with technical support needed to intercept local telephone traffic from the HMS Rotterdam.[1]

But it appears that the US has been using this data for a different purpose. Since 2011 the US has been carrying out drone strikes in Somalia in the context of its war against terrorism, and on 8 March 2014 Dutch newspaper NRC Handelsblad revealed that it is likely that the United States is using Dutch data to support drone strike operations on (alleged) members of Al-Shahaab in Somalia. NRC Handelsblad bases this assertion on several Dutch and US documents made public by NSA whistleblower Edward Snowden, and reports that the Dutch Ministry of Defence cannot exclude that the metadata shared with the US is used in order to facilitate such targeted killings.

According to research done by The Intercept metadata play a crucial role in US targeted killings. This places the Netherlands in a tedious position, as the legality of targeted killing by drone strikes remains highly controversial. Assuming that these attacks can at least in some circumstances be qualified as breaches of international law, the Netherlands could be contributing to internationally wrongful acts committed by the US. And it is in good company: the United Kingdom, Germany and Australia have all been accused of involvement in US drone strikes through intelligence-sharing.

A variety of actors appears to be involved in the US’ wrongful acts, including not only states but also individuals. The question that inevitably arises is the following: can these international actors be held internationally responsible for sharing intelligence that facilitates the commission of wrongful acts by the US?

State responsibility for aid or assistance

The obvious place to start in answering this question would be article 16 of the ILC Articles on State Responsibility, which provides that a State can be held internationally responsible when it aids or assists another State in the commission of an internationally wrongful act. When applied to our scenario, it needs to be established that the conduct in question would be internationally wrongful, if it were to be committed by the Netherlands. It is indeed arguable that this would be the case. Moreover, the Netherlands must have had knowledge of the circumstances of the wrongful act. While it is unclear whether the Netherlands was initially aware of the fact that their intelligence might be used to facilitate US drone strikes, it should surely know now (which is relevant as long as the Dutch keep sharing intelligence).

However, it may prove to be more difficult to meet the requirements mentioned in the ILC’s commentaries, which clarify that knowledge is not enough; the Netherlands should have intended to facilitate the US drone strikes in Somalia.[2] Establishing a State’s intent remains a daunting task, which becomes even more difficult in situations that are characterised by such a remarkable lack of transparency.

Moreover, it is not entirely clear what threshold aid or assistance should reach in order to result in responsibility. The ILC’s commentaries at one point state that the aid or assistance should have ‘contributed significantly to the act’, but at another point assert that it ‘may have been only an incidental factor in the commission of the primary act’.[3] In any case, chances are that the extent in which Dutch intelligence has facilitated US drone strikes will remain uncertain. The Dutch Ministry of Defence has stated that revealing the extent in which intelligence contributes to a specific mission would reveal the mode of operation of Dutch intelligence services, which it cannot do as this would endanger both the operation and the lives of soldiers.

Individual criminal responsibility for complicity in war crimes

NGOs Reprieve and the Foundation for Fundamental Rights (FFR) have chosen to address this question from a different angle. On 19 February 2014 they submitted a communication to the International Criminal Court (ICC), requesting the Prosecutor to investigate the role of the UK, Germany, Australia and other NATO allies in US drone strikes in Pakistan. One commentator has already pointed out the difficulties that might arise in establishing the ICC’s jurisdiction.

While the US and Pakistan are not parties to the Rome Statute, the communication argues that the ICC has jurisdiction because a) the drone strikes are launched from Afghanistan, which is a party to the Rome Statute, and b) nationals of the UK, Germany and Australia (which are all parties to the Rome Statute) are potentially facilitating these drone strikes through intelligence sharing. Reprieve and FFR would like to see these individuals be held criminally responsible by the ICC for their complicity in US war crimes. Though there seems to be far less information available on US drone attacks in Somalia, theoretically speaking a similar argument could be made regarding the role of Dutch nationals in targeted killings on Somali territory.

But even though the practice of intelligence sharing gives rise to a variety of potential shared responsibility scenarios, there is one main problem that stands in the way of determining responsibility: the complete lack of transparency surrounding drone strikes and intelligence sharing. It appears that there is currently no international obligation that would require states to disclose such information. Unfortunately, this will more often than not entail that rather than establishing shared responsibility, we are simply left with no responsibility.

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[1] See NRC, ‘The secret role of the Dutch in the American war on terror’, by Steven Derix and Huib Modderkolk, available at http://www.nrc.nl/nieuws/2014/03/05/the-secret-role-of-the-dutch-in-the-american-war-on-terror/.

[2] International Law Commission, Articles on Responsibility of States for Internationally Wrongful Acts, with commentaries, 2001 (A/56/10), at 66, para. 5

[3] Ibid.; also p. 67, para. 10.

Protecting the Arctic area – a responsibility of many?

 Posted by:Schechinger Jessica

On 16 December 2013, the fourth SHARES Debate entitled Protecting the Arctic area – a responsibility of the Netherlands? was held in Amsterdam. The panel consisted of three speakers: Louwrens Hacquebord, René Lefeber, and Daniel Simons. André Nollkaemper acted as moderator. This blog post highlights the main parts of the debate.

Background – changes and threats

Through the melting of the ice of the Arctic, as a consequence of global warming, new economic opportunities for states and businesses arise. Areas that until recently were covered in ice are now opening up, creating, for example, permanent navigational routes between Asia and Europe, and enabling the exploitation of oil and gas resources that had been previously located in inaccessible areas. The Netherlands, as well as companies incorporated in the Netherlands, are among the many actors that want to capitalise on these new opportunities. The increase of economic activities can pose significant risks to the fragile ecosystem of the Arctic. This raises a fundamental question: who is responsible for the management, use and protection of the Arctic area? In this complex situation, question arise over the role and responsibility of the Netherlands and other actors, including Dutch companies such as Van Oord, Boskalis and Shell.[1] The Netherlands’ policy framework concerning the polar regions (Beleidskader Nederland en de Poolgebieden 2011-2015) addresses the importance of the Arctic area for the Dutch industry, and describes the Arctic administrative system as a geographic and legal patchwork.

The role and rights of the Arctic states

A geological survey carried out by the United States revealed that there are (potential) substantial oil and gas reserves in the Artic area,[2] which has led some of the Arctic states to claim parts of the sea and seabed (for more information and a map on Maritime jurisdiction and boundaries in the Arctic region of the International Boundaries Research Unit of Durham University see here). As a result of increasing oil prices, multinationals have an increased interest in the Arctic area. The five states bordering the Arctic Ocean (the United States of America, Canada, Russian Federation, Norway and Denmark (including Greenland and the Faroe Islands) can exercise authority under the 1982 United Nations Convention on the Law of the Sea (LOSC) over most of the oil and gas resources. They therefore play an important role and are primarily responsible for managing and protecting the Arctic environment.

In 2008, the five states bordering the Arctic Ocean adopted the Ilulissat Declaration, claiming a stewardship role in protecting the Arctic Ocean.[3]

The most important international governmental forum in the Arctic is the Arctic Council, which is composed of the five aforementioned states and Sweden, Iceland and Finland (the latter three being Arctic states that do not border the Arctic Ocean). These Arctic Council member states cooperate and coordinate Arctic issues in this Council. An increasing number of ‘observer’ states participate in this forum, including the Netherlands.

The main applicable legal instrument for the Arctic area is the LOSC. The LOSC provides in Article 56(1)(a) that a coastal state has, in the exclusive economic zone (EEZ) ‘sovereign rights for the purpose of exploring and exploiting, conserving and managing the natural resources, whether living or non-living, of the waters superjacent to the seabed and of the seabed and its subsoil, and with regard to other activities for the economic exploitation and exploration of the zone, such as the production of energy from the water, currents and winds’.[4] However, these states also have obligations. Importantly, according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment’. In order to achieve this, Article 194(2) LOSC provides that states ‘shall take all measures necessary to ensure that activities under their jurisdiction or control are so conducted as not to cause damage by pollution to other States and their environment’. Further, ‘States shall take, individually or jointly as appropriate, all measures consistent with this Convention that are necessary to prevent, reduce and control pollution of the marine environment from any source’ (Article 194(1) LOSC). In the EEZ, coastal states have functional jurisdiction over the protection and preservation of the marine environment (Article 56(1)(b)(iii)). Article 56(2) LOSC moreover provides for the notion of due regard according to which coastal states need to consider the rights and duties of other states while exercising their rights and performing their duties under the LOSC.

Both Hacquebord and Simons emphasised that exploratory drillings and oil production are more and more conducted ‘offshore’ (away from the coast). These activities increasingly take place in the direction of the geographic north pole, leading to risk and disturbance for flora and fauna. A potential disaster would be more difficult to fight and could have severe environmental consequences for this area. Be that as it may, currently, all Arctic states have planned offshore exploratory drillings in the area. Gazprom is most advanced in offshore oil production.

The role of third states and the Netherlands

Besides the Arctic states, many other states have become involved in the discussion on issues related to the Arctic, including China, Japan, South-Korea and the Netherlands. These third states see economically viable opportunities, having for example an interest in permanent navigational routes between Asia and Europe. It needs to be emphasised that according to Article 192 LOSC, each state has the (general) obligation ‘to protect and preserve the marine environment.’ Therefore each of these states has a (subsidiary) responsibility for the protection and preservation of this unique and fragile area.

The Netherlands, as a third state, has to strike a balance between the economic interests and gains involved and protecting the ecosystem of the Arctic. According to Hacquebord, because the Netherlands has a long tradition of being actively involved in scientific research in the area (starting 1882-1883 and going back to the time of Willem Barentsz at the end of the 16th century), it also has a responsibility for this area. The Netherlands currently also conducts research there. Because the Netherlands is connected via natural systems such as climate and migratory birds with the Arctic, sea level rise due to melting of the ice that occurs in that area also has consequences for the situation in the Netherlands as a low laying country. Although the ‘observer’ status of the Netherlands in the Arctic Council must not be overestimated, it can make a difference in the working groups of the Council (where policy on e.g. protection of the Arctic marine environment and sustainable development is being determined), through the Dutch researchers that are members of these working groups. For the PowerPoint presentation of Professor Hacquebord see here.

Lefeber, who recently represented the Netherlands at the International Tribunal for the Law of the Sea in Hamburg in the Arctic Sunrise case between the Netherlands and Russia, emphasised in his oral pleadings in this case the historical link of the Netherlands with the Arctic area (calling the account of Willem Barentsz and the other sailors part of the Dutch national cultural heritage). He mentioned that the Netherlands feels responsible to a limited extent for the Arctic area, since it recognises and respects the sovereignty of the Arctic states over the territory. The Arctic states have prescriptive jurisdiction and enforcement jurisdiction, also with regard to the adjacent maritime areas. However, the exercise of jurisdiction has to be in conformity with international law.

According to Simons, the role and influence of the Netherlands should not be overestimated, but it can however make a positive contribution to minimise environmental risks. As observer, the Netherlands can plead for strict and binding rules and thereby make investing in the oil/gas industry in this area costly and less attractive. Shell for example has conducted some exploratory drillings in the Arctic area, and Gazprom and Shell have recently established a joint venture. According to Simons, the Netherlands should exercise more restraint and look more critical to the long term interests it has as a low laying country.

The European Union

During the discussion with the audience the role of the European Union (EU) was discussed. The speakers noted that the EU is trying to become involved, a request for observer status is under continued consideration. The EU sees economic opportunities and invests for example in the Arctic programmes of the European Polar Board. However, currently there is not sufficient support to grant the EU such a status.

The role of NGOs

NGOs such as Greenpeace and the World Wide Fund for Nature are becoming more active in the protection of the Arctic area, occasionally leading to conflicts with both Arctic states and multinationals. The main aim of NGOs is to raise public awareness and try to affect change in policies of states and companies. Hacquebord drew attention to the fact that NGOs (together with the media) have changed our perception of the Arctic area, by portraying it as a fragile ice wilderness with special animals that belongs to all of humanity and which is being ‘invaded’ by oil companies.

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[1] Unfortunately, none of the contacted companies was able or willing to participate in this debate.

[2] According to Simons, this survey has showed that there is (possibly) enough oil to meet world demand for about three years.

[3] ‘The Arctic Ocean is a unique ecosystem, which the five coastal states have a stewardship role in protecting. Experience has shown how shipping disasters and subsequent pollution of the marine environment may cause irreversible disturbance of the ecological balance and major harm to the livelihoods of local inhabitants and indigenous communities. We will take steps in accordance with international law both nationally and in cooperation among the five states and other interested parties to ensure the protection and preservation of the fragile marine environment of the Arctic Ocean.’

[4] Article 193 LOSC provides in general terms that: ‘Sovereign right of States to exploit their natural resources States have the sovereign right to exploit their natural resources pursuant to their environmental policies and in accordance with their duty to protect and preserve the marine environment.’

The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

 Posted by: Irving Emma

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.

 

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[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

The Legal Limbo Continues: Update on the Detained Witnesses at the ICC

Posted by:

Irving Emma

In October 2012 and January of this year the SHARES blog posted about the situation of Congolese witnesses detained at the International Criminal Court (ICC) in The Hague. Their detention continues, and while the resolution of their legal status is one step closer, it is also as illusive as ever, due to a decision of the Amsterdam District Court.

A detailed background to the situation can be found here, but can be briefly summarised as follows. Four individuals, detained in the Democratic Republic of the Congo (DRC) on charges relating to the on going armed conflict in the country, were transferred to the ICC detention unit in May 2011 in order to give evidence as witnesses. When the witnesses concluded their testimony, they applied for asylum in the Netherlands. Since that time they have remained detained and now find themselves in a legal limbo with neither the ICC nor the Netherlands willing to assume responsibility for their fate.

On 14 October 2013, the Amsterdam District Court ruled on an appeal against a decision to not grant refugee status to the witnesses. The Court held that the Secretary of State of the Department of Security and Justice did not err when he excluded the witnesses from the protection of the Refugee Convention. This was done on the basis on Article 1F, which states that persons suspected of involvement in crimes against humanity are not protected as refugees. The reason for their detention in the DRC prior to coming to the Netherlands was indeed the suspicion that they were implicated in the killing of UN peacekeepers (although they were never formally charged).

Despite not gaining the refugee status they sought, the Amsterdam District Court did provide some protection for the witnesses. In effect, it gave them the benefit of the complementary protection afforded by the European Convention on Human Rights (ECHR).

The Court found that if the witnesses were returned to the DRC, this would constitute a violation of Article 6 ECHR. They began by quoting the Othman case:

“It is established in the Court’s case-law that an issue might exceptionally be raised under Article 6 by an expulsion or extradition decision in circumstances where the fugitive had suffered or risked suffering a flagrant denial of justice in the requesting country.”[1]

And go on to quote the following passage from Al-Moayad:

“A flagrant denial of a fair trial, and thereby a denial of justice, undoubtedly occurs where a person is detained because of suspicions that he has been planning or has committed a criminal offence without having any access to an independent and impartial tribunal to have the legality of his or her detention reviewed and, if the suspicions do not prove to be well-founded, to obtain release.”[2]

The District Court found that the detention of the witnesses in the DRC had been unlawful since 2007, because the basis for their detention was never renewed by the domestic courts. This, combined with the fact that they had never been formally charged with an offence, rendered the situation in the DRC a flagrant denial of justice. As such, their return to the DRC would be contrary to Article 6, and it is on this ground that the decision of the Secretary of State to return the witnesses was overturned.

It is interesting that the Court bases its decision on Article 6 of the ECHR. As reported previously on this blog, the European Court of Human Rights held in the Longa[3] case that the matter of the witnesses’ on going detention was outside the jurisdiction of the ECHR under Article 1, due to the fact that they are on ICC premises. The Amsterdam District Court, in the decision of 14 October, dealt with this by confining Longa’s applicability to claims brought under Article 5 ECHR. The rationale for this is grounded in the ‘equivalent protection’ doctrine[4] – as far as detention is concerned, the ICC is able to offer protection equivalent to that otherwise owed by the Netherlands under the ECHR. The same however cannot be said of the DRC; the ‘equivalent protection’ doctrine deals with international organisations, not states. It was found that the guarantees offered by the DRC as to the fair trial of the individuals were insufficient.

From the perspective of sharing responsibility for the human rights of the witnesses, the Amsterdam District Court appears to be saying that where the reach of the ICC ends, the role of the Netherlands must begin. In this way, there is no gap in the protection of the witnesses. The Netherlands is not free to claim that the witnesses are solely within the jurisdiction of the ICC, as the Longa case seemed to suggest. Rather, where the ICC involvement ends, so does the presumption of equivalent protection. At this point the obligations of the Netherlands are engaged under the ECHR.

It would have been interesting had the Amsterdam District Court addressed the possibility that time spent detained in the Netherlands may somehow have contributed to a violation of Article 6 ECHR, despite this not being raised by the parties. Instead the Court examines the issue entirely as a non-refoulement matter. There is no consideration of the prospect that the period of more than two years in the Netherlands was an element of the Article 6 violation. The quote from Al-Moayad used by the Court to define a flagrant denial of justice suggests that detention without access to review of that detention could be a violation of Article 6. The Court could not deal with the detention of the witnesses under Article 5 because of the Longa case, but it could have made the argument that the accumulation of periods of six years in the DRC and two years in the Netherlands was also an element of the flagrant denial of justice. This perhaps would have been a more accurate reflection of how multiple entities involved in the witnesses’ situation are responsible for the violation of Article 6.

The Amsterdam District Court may have protected the witnesses from an unfair trial in the DRC, but allowing them to remain in the Netherlands does not resolve the issue of their legal status. Now it is presumed, they will join the many others who find themselves on European territory protected by the ECHR, but excluded from refugee status. What remains to be seen is whether they will now be released from detention. The legal limbo continues on.

 

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[1] Case of Othman (Abu Qatada) v. the United Kingdom, Application no. 8139/09, Judgment, 17 January 2012, para. 258.

[2] Mohammed Ali Hassan Al-Moayad v. Germany, Application no. 35865/03, Decision on Admissibility, 20 February 2007, para. 101.

[3] Bède Djokaba Lambi Longa v. the Netherlands, Application no. 33917/12, Decision on Admissibility, 9 October 2012.

[4] As developed initially in the Bosphorus line of cases (Case of Bosphorus v. Ireland, Application no. 45036/98, Judgment, 30 June 2005).

Responsibility of the Netherlands for the conduct of Dutchbat: overview of the Supreme Court decision

 Posted by: Bérénice Boutin

On 6 September 2013, the Dutch Supreme Court confirmed that the Netherlands was responsible in relation to the death of three Bosnians in Srebrenica. Finding no ground for cassation, it upheld the 2011 decisions of the Court of Appeal of The Hague, concluding the last stage of proceedings in the important cases of Nuhanović and Mustafić. These cases are remarkable in that a remedy is finally provided to some victims, but also because they comport a number of important findings for the debate on the shared responsibility of States and international organizations for the conduct of peacekeepers. Notably, the Supreme Court unequivocally recognizes the possibility of multiple attribution, notably under the test of effective control (para 3.11.2).

For those not familiar with the cases, their specific factual circumstances must be recalled. The cases of Nuhanović and Mustafić are based on a limited claim that the Dutch contingent to UNPROFOR (Dutchbat) wrongfully forced a few individuals to leave a compound where they had sought refuge. Following the capture of the enclave of Srebrenica in July 1995, about 32 000 civilians took refuge in and around the nearby industrial compound where Dutchbat was stationed. The Dutch government and UNPROFOR commanders rapidly agreed to evacuate the compound and withdraw forces, and Dutchbat commander Karremans met with Mladic to attempt to negotiate the safe evacuation of the refugees. Refugees started being evacuated by buses of the Bosnian-Serb army, and it quickly became clear that refugees, specially able-bodied men, were being murdered. Nonetheless, Muhamed Nuhanović, Ibro Nuhanovic and Rizo Mustafić were forced to leave and died. Relatives of these three individuals brought two almost identical claims before Dutch courts to upheld the responsibility of the Dutch State for the wrongful removal by Dutchbat.

In 2008, the District Court rejected the claims on the ground that the alleged conducts were attributable to the UN alone. In 2011, the Court of Appeal ruled in favor of the victims, finding the State responsible on the basis of effective control (see here). The Dutch State, which has always maintained that the UN should be responsible for the conduct of Dutchbat, brought the cases to cassation. In these landmark decisions, the Dutch Supreme Court confirmed the responsibility of the State for the conduct of forces engaged in peacekeeping operations.

1. Attribution

In previous instances, victims maintained that their claim, including the issue of attribution, was to be decided under Bosnian law (applicable through Dutch private international law). Here, victims did not challenge the finding that attribution had to be decided under international law, thus the Supreme Court proceeded on the assumption that ‘the question of attribution should be answered solely in accordance with the rules of international law‘ and pointed the ILC Articles on the Responsibility of States (DARS) and the ILC Articles on the Responsibility of International Organizations (DARIO) as relevant instruments (paras 3.6.2, 3.7).

The Court rejected the State’s submission that ‘Dutchbat’s conduct should, in principle, always be attributed to the United Nations’ (para 3.10.1) under Article 6 DARIO. It rightly considered that, even if Dutchbat was a UN organ during the time of the mission, it did not cease being an organ of the Netherlands, which – as any State contributing troops to a military operation – retained ‘organic command‘ (that is, disciplinary powers and criminal jurisdiction) over its troops (para 3.10.2). Referring extensively to the ILC commentaries, the Supreme Court confirmed that Article 7 DARIO is the relevant rule for the attribution of the conduct of peacekeepers.

On the question of multiple attribution, the State submitted that ‘international law excludes the possibility […] that both the United Nations and the State had effective control’ and inter alia suggested that multiple attribution of the same conduct was not possible in the ILC framework. The Supreme Court dismissed this claim as an ‘incorrect interpretation of the law’ (para 3.11.2). It pointed out that, according to the ILC Commentaries, ‘articles 6-9 DARIO do not necessarily mean that conduct must be exclusively attributed to an international organization – thereby resulting in the exclusive responsibility of the international organization – but instead leave open the possibility of conduct being attributed to an international organization and a State, which would then result in dual attribution to the international organization and the State concerned‘, and added that ‘Article 48(1) DARIO therefore expressly leaves open the possibility of more than one State or organization being held responsible for the consequences of an internationally wrongful act’ (para 3.9.4).

Further, the Supreme Court upheld the interpretation that, to exercise effective control, ‘it is not necessary for the State to have countermanded the command structure of the United Nations by giving instructions to Dutchbat or to have exercised operational command independently’ (para 3.11.3), and confirmed that during the transitional period of withdrawal where the Stare was closely involved, ‘not only the United Nations but also the Dutch government in The Hague had control over Dutchbat and also actually exercised this in practice‘ (para 3.12.2). By these decisions, the Supreme Court impotantly confirmed that a State exercising some degree of effective control cannot hide behind the UN when it comes to responsibility for the conduct its contingent.

2. Wrongfulness

The Court of Appeal had held the conduct wrongful on the basis of alternatively Bosnian torts law or international law (art 2 and 3 ECHR, art 6 and 7 ICCPR). Under Dutch law, the Supreme Court cannot review ‘in the cassation proceedings the correctness of these rulings of the Court of Appeal in so far as they are based on application of the domestic law of Bosnia and Herzegovina’. In its decisions, the Supreme Court could therefore confirm the wrongfulness of the conduct on the sufficient basis of Bosnian law (para 3.15.5).

Nonetheless, the Court addressed the State’s submission that the ECHR and ICCPR were not applicable extraterritoriality. It took the opportunity to ‘observe, by way of obiter dictum’ that the Netherlands derived competence in Srebrenica from the Status of Force Agreement concluded with Bosnia and Herzegovina, and therefore exercised ‘jurisdiction within the meaning of article 1 ECHR in the compound‘ (para 3.17.3).

The Court powerfully concluded by asserting that courts should not refrain from holding a State responsible on account that it was engaged in a peacekeeping operation. It observed: ‘far-reaching restraint is unacceptable. Nor is this altered by the fact that the State expects this to have an adverse effect on the implementation of peace operations by the United Nations, in particular on the willingness of member States to provide troops for such operations. This should not, after all, prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent‘ (para 3.18.3).

With its clear stance on multiple attribution, effective control, and judicial review, it is expected that the Supreme Court ruling will have some impact on future cases of responsibility in military operations before domestic courts and the ECtHR.