The Netherlands and the United Nations, Legal Responsibility for Srebrenica before the Dutch Courts

This note provides some introductory remarks to two judicial cases decided by The Hague District Court and The Hague Court of Appeals, between The Netherlands (respondent) and the survivors and/or the relatives of the victims of the genocide in Srebrenica (i.e. Mustafić, Nuhanović and a Foundation called ‘Mothers of Srebrenica’). The cases in question dealt with the legal responsibility of The Netherlands and the United Nations for the conduct of ‘Dutchbat’ during the fall of the Bosnian city. Dutchbat was part of the United Nations Protection Force (UNPROFOR) – a peacekeeping force active in the former Yugoslavia during the civil war of the 1990’s. The rulings examined in this case note focus on the immunity of the United Nations from domestic jurisdiction, and the principle of (dual) attribution. While the former was not questioned by the Dutch judges, the latter was assessed differently by the two courts. The District Court ruled out the possibility of dual attribution and imputed the conduct of Dutchbat solely to the UN. Conversely, the Court of Appeals overturned this rationale and instead upheld the principle of dual attribution as well as the responsibility of the Dutch government for the death of the plaintiffs’ relatives. Both courts
made extensive use of the work of the International Law Commission, relying heavily on the ILC’s Articles on the Responsibility of States for Internationally Wrongful Acts, and the ILC’s Draft Articles on the Responsibility of International Organizations.