Tuesday, July 05, 2011


Unfazed by last week's spanking in the electricity unbundling case, the Court of Appeals in The Hague again has an eyebrow-raising judgement. This time, they sided with the plaintiffs-appellants one of the Srebrenica cases.

Taking the case back-to-front, the underlying legal argument is actually not that implausible. Rather than attempting to make the State liable for the genocide in Srebrenica as such, which would be a stretch no matter how you look at it, this case is only about one single victim, a victim who was supposed to be among those transported out of the town, but wasn't. Theoretically, the agreement made by Dutchbat with the Bosnian Serbs involved the evacuation not only of Dutchbat itself, but also of all locals that worked for them. And the victim in this case, Rizo Mustafic, worked as an electrician for the UN peacekeepers. Yet for reasons that are not entirely clear from the court's judgement, Mustafic was not with them when they left. As a result, he was killed.

Given that the plaintiffs thus have a colourable argument on the other three elements of an unlawful act under Dutch law (unlawfulness, causation and damage), it makes sense that the court of first instance focused on the attributability issue: If UN peacekeepers screwed up, why sue the Dutch government? Why not the UN? In practical terms, the answer is easy: Because the UN is immune from suit. But legally that is not a sufficient answer. To the extent that Dutchbat was under the "control" (see below) of the UN and not the Dutch state, only the former can be sued for any unlawful acts committed by Dutchbat. The court of first instance came to exactly this conclusion: the plaintiffs should lose because they sued the wrong person. Dutchbat was under the command and control of the UN.

The Court of Appeals now overrules. It already gets interesting in par. 5.5, where the CoA, citing the Commissie van advies inzake volkenrechtelijke vraagstukken, claims that Dutch army operations in Bosnia were - in general - capable of giving rise to liability under national Bosnian law. Not having see the CAVV's opinion, I can only say that I have my doubts. In any event, the CoA concludes that in this particular case this is irrelevant, and moves on.

With regard to control, the CoA rules that it is not "command and control" that matters, but the more factual "effective control" criterion. (They cite the International Law Commission.) On that basis, it proceeds to examine to what extent the UN and the Dutch government were actually in control of what the soldiers were doing on the ground in Srebrenica in 1995. I think we can all agree that this is an unfortuante conclusion. When it comes to messy matters like military SNAFUs, courts should generally prefer criteria that involve as little factfinding as possible. Bright lines and no second-guessing, whenever possible. The ILC rule cited seems to be one of respondeat superior generally, meaning that the CoA apparently failed to consider whether it might be appropriate to fashion a different rule for military matters.

The examination of the facts obviously yields the result that the Dutch government exercised significant control. As a result, the CoA finds the government liable, although the damages award is kept on ice for a later day. The same goes for the related case of Nuhanovic, to which the above applies mutatis mutandis, which was also handed down by the same panel today. According to the press, the landsadvocaat wants to study the decision before deciding what to do with it, but I would be highly surprised if he didn't ask the Supreme Court to affirm the court of first instance's "command and control" rule over the CoA's "effective control" approach.

UPDATE: Something occurred to me when I was emailing about this ruling. Is the Court of Appeals saying that the UN was not the principal - for respondeat superior liability purposes - of Dutchbat at the relevant time, or are they saying Dutchbat had two principals? The latter seems like a perfectly acceptable theory in normal civilian life, including the kinds of cases that the ILC rule applies to, but in a military situation it seems quite anomalous. In the military, they would normally try to establish a clear - and unique - chain of command. And to the extent that peacekeeping missions don't achieve this goal, I would think it is nonetheless preferable for the a court to limit itself to the primary chain of command, and ignore the others, just like the military on the ground would have attempted to do. And this means, normally, a "command and control test", not an "effective control test", since the latter will almost always conclude that peacekeepers have more than one chain of command.

UPDATE 2: The reporter for European Voice makes a similar point: "The ruling will give pause to governments that contribute troops to peacekeeping missions around the world. National contingents in such missions routinely receive instructions through national chains of command even though they are formally under the command of the UN. That practice is now likely to come under scrutiny: the Hague court based its ruling on the finding that the soldiers in Srebrenica acted on orders from the Dutch ministry of defence when they handed the three men over to the Serbs."

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