The State of the Netherlands v. Hasan Nuhanović

Court	Supreme Court of The Netherlands, The Netherlands
Case number	12/03324
Decision title	Judgment
Decision date	6 September 2013
Parties	The Netherlands (Ministry of Defence and Ministry of Foreign Affairs) Hasan Nuhanović
Other names	Nuhanović case
Categories	Genocide
Keywords	genocide, immunities, operational command
Links	Judgment
Other countries involved	Bosnia and Herzegovina

Summary

The Supreme Court of the Netherlands affirmed the strong approach to dual attribution taken by the Court of Appeal and dismissed the appeal. It found that it is possible for both the Netherlands and the UN to have effective control over the same wrongful conduct and that attributing this conduct to the Netherlands did not in any way determine whether the UN also exercised effective control over the Dutchbat troops (pp. 22-23, para. 3.11.2).

This case is important, as it marks the first time an individual government has been held to account for the conduct of its peacekeeping troops operating under a UN mandate. Liesbeth Zegveld, the Dutch lawyer who represented the victims, stated that “a U.N. flag doesn’t give...immunity as a state or as an individual soldier.” As a result of this judgment, two Bosnian families are now expected to receive damages from the Dutch state, and other cases may follow.

Procedural history

On 10 September 2008, the District Court of The Hague denied the claim brought by a former UN interpreter and the family of one of the victims against the State of the Netherlands. The claimants sought to hold the Dutch State liable for its role in failing to prevent the massacre in and around Srebrenica in July 1995, in which up to 8,000 Bosnian Muslims were killed. The Court held that the Dutch Government could not be held responsible because the peacekeepers were operating in Bosnia under a United Nations mandate.

The case was filed by Hasan Nuhanovic and by the family of Rizo Mustafic. Rizo Mustafic and the parents and brother of Nuhanovic were among those who lost their lives in the Srebrenica massacre. The lawyers for Nuhanovic and the Mustafic family claimed, inter alia, that the Dutch State committed war crimes, was involved in genocide and violated fundamental human rights by handing their family members over to the (Bosnian-Serb) enemy.

Defence counsel for the Dutch government pleaded that the UN – and not the Netherlands – was in ‘operational command’ of the Dutch UN battalion defending Srebrenica. In its decision, the Court determined that ‘operational command and control’ over the Dutchbat troops had been transferred to the UN and that the claimants had not submitted anything pointing to restrictions on this transfer of command.

On 5 July 2011, the Court of Appeal ultimately quashed the judgment of the District Court, finding that the conduct was indeed attributable to the Netherlands and that it had acted wrongly.

Legally relevant facts

The case concerns events that occurred shortly after the fall of the Srebrenica enclave on 11 July 1995. Hasan Nuhanović was in the employment of the United Nations as an interpreter at the compound in Potočari where Dutchbat was stationed (p. 3, para. 3.1). He held a UN pass and was on the list of local personnel who could be evacuated together with Dutchbat.

In addition, the Dutchbat troops received reports at various times that the Bosnian Serbs were committing crimes against the male refugee population (p. 8, para. 3.2(xii)).

Core legal questions

Can Dutchbat’s actions be attributed to the State?
Were Dutchbat’s actions wrongful?

Specific legal rules and provisions

Articles 4 (conduct of organs of a State) and 8 (conduct directed or controlled by a state) of the Draft Articles on Responsibility of States for Internationally Wrongful Acts of 2001 (DARS).
Articles 6 (conduct of organs or agents of an international organization), 7 (Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization) and 48 (Responsibility of an international organization and one or more States or international organizations) of the Draft Articles on the Responsibility of International Organizations of 2011 (DARIO).
Articles 2 (right to life) and 3 (prohibition of torture) of the European Convention on Human Right (ECHR).
Articles 6 and 7 of the International Covenant on Civil and Political Rights (ICCPR).
Sections 154 (bases of responsibility), 155 (damages) and 171 (responsibilities of others) of the Law of Obligations Act of Bosnia and Herzegovina (Zakon o Obligacionim Odnosima).

Court's holding and analysis

The first question was answered in the affirmative, with the Supreme Court explaining that public international law allows conduct to be attributed not only to the UN (in charge of the peace mission) but also to the State because the latter had effective control over Dutchbat’s disputed conduct.

As to the second question, the challenge against the decision of the Court of Appeal that Dutchbat’s conduct was wrongful under the law of BiH, was unsuccessful. The State advocated for judicial restraint in the review of Dutchbat’s conduct, but according to the Supreme Court, this would mean that there would be virtually no scope for the courts to assess the conduct of a troop contingent in the context of a peace mission, which was unacceptable, in the Court’s view, though it acknowledged that a court assessing the conduct in retrospect must make allowance for the fact that the decisions in questions were taken under great pressure in a war situation.

The Supreme Court concluded that the Dutch State was indeed responsible for the death of three Muslim men (Nuhanovic’s father Ibro and brother Muhamed and Rizo Mustafic) from Srebrenica.