State of the Netherlands v. Mothers of Srebrenica Association and Others

Abstract

State responsibility — Attribution — United Nations peacekeeping troops — Dutch battalion contingent of United Nations Protection Force in Bosnia and Herzegovina (“Dutchbat”) — Responsibility for conduct of Dutchbat — Acts of Dutchbat taking place up until 23.00 on 11 July 1995 under UN flag — Whether attributable to Netherlands — Whether Netherlands having effective control over acts — UN International Law Commission Draft Articles on Responsibility of States for Internationally Wrongful Acts 2001, Articles 4(1) and 8 — Dutchbat United Nations organ — Whether Dutchbat’s conduct taking place under direction or control of Netherlands — Effective control standard — Whether Netherlands responsible for Dutchbat’s conduct at relevant time

International organizations — Responsibility — United Nations — Peacekeeping troops — Dutchbat — Dutchbat United Nations organ — Responsibility for conduct of Dutchbat — Acts of Dutchbat taking place up until 23.00 on 11 July 1995 under UN flag — Ultra vires conduct — Attribution to UN — UN International Law Commission Draft Articles on the Responsibility of International Organizations 2011, Article 8

Treaties — Interpretation — Application — Effect — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Article I — Obligation to prevent genocide — Interpretation of provision in accordance with Articles 31-3 of Vienna Convention on the Law of Treaties, 1969 — Text of Genocide Convention — Legislative history of Genocide Convention — Whether Contracting Parties intending obligation to have direct effect — Whether terms of provision sufficiently precise to be applied directly — Whether obligation having direct effect in proceedings between civilians and Netherlands

Relationship of international law and municipal law — Treaties — Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Article I — Obligation to prevent genocide — Whether Article I of Genocide Convention having direct effect within meaning of Articles 93 and 94 of Constitution of the Netherlands — Interpretation of provision in accordance with Articles 31-3 of Vienna Convention on the Law of Treaties, 1969 — Text of Genocide Convention — Legislative history of Genocide Convention — Whether Contracting Parties intending obligation to have direct effect — Whether terms of provision sufficiently precise to be applied directly — Whether obligation having direct effect in proceedings between civilians and Netherlands

International criminal law — Genocide — Whether Netherlands failing to prevent genocide perpetrated by Bosnian Serbs — Obligation to prevent genocide in Article I of Convention on the Prevention and Punishment of the Crime of Genocide, 1948 — Whether Netherlands violating Article I of Genocide Convention — Whether Article I having direct effect in proceedings between civilians and Netherlands

Relationship of international law and municipal law — Treaties — European Convention on Human Rights, 1950, Articles 2 and 3 — International Covenant on Civil and Political Rights, 1966 — Protection of rights to life and physical integrity — Whether Dutchbat’s acts wrongful to be assessed under Dutch law — Applicable standard — Article 6:162 of Dutch Civil Code — Duty of care — Standards derived from Articles 2 and 3 of European Convention inherent in duty of care — Whether Court of Appeal applying correct standard

Human rights — Rights to life and physical integrity — Treaties — Standards — European Convention on Human Rights, 1950, Articles 2 and 3 — War situation in Bosnia and Herzegovina — Evacuation of refugees — Rights of male refugees — Violation of rights by Bosnian Serbs — Whether Dutchbat’s command knew, or reasonably ought to have known, at time of evacuation of real risk of violation of those rights — Whether Dutchbat acting wrongfully — Whether wrongful for Dutchbat to continue to cooperate in evacuation of refugees located in safe area outside compound — Whether wrongful for Dutchbat not to offer male refugees the choice of remaining in compound — Whether real chance that male refugees could have escaped Bosnian Serbs if remaining in compound — Estimation of chance

Damages — Claim for damages — Whether Netherlands to pay compensation — Whether order of Court of Appeal for compensation to be paid — Whether based on incorrect interpretation of law — Whether incomprehensible — Whether claim for damages could only be lodged by surviving relatives of male refugees evacuated from compound on 13 July 1995 — Whether Mothers of Srebrenica Association could claim damages — The law of the Netherlands