Judgment of the Court of Appeal of The Hague, LJN: BR5386 of 5 July 2011 (Mustafić et al.)*
Attribution of responsibility for acts towards third parties—Draft Articles on the responsibility of international organizations of the International Law Commission (ILC)—If a State places troops at the disposal of the United Nations for purposes of a peacekeeping mission, the question as to whom wrongful conduct of such troops should be attributed depends on which party exercises “effective control” over the relevant conduct—Violation of the right to life and prohibition on inhuman treatment— Interpretation of article 171 (1) of the Act on Obligations of Bosnia and Herzegovina— Failure to institute criminal proceedings
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Assessment of the appeal
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1.3 The Court proceeds on the assumption that the following facts, which have been argued and have not or not sufficiently been contested or that resulted from the exhibits which were not contradicted, have been established between the parties. In chronological order these facts will be mentioned below.
2.1 In 1991, the Republics of Slovenia and Croatia declared their independence from the Socialist Federal Republic of Yugoslavia. As a result from the fighting that started especially in Croatia, the Security Council of the United Nations decided to set up the United Nations Protection Force (hereinafter: UNPROFOR), with its headquarters in Sarajevo.
2.2 On 3 March 1992, the Republic of Bosnia and Herzegovina also declared its independence from the Socialist Federal Republic of Yugoslavia. Population groups of Muslims and Serbs were both living in Bosnia and Herzegovina. After the Bosnian Serbs had declared their independence from the Republika Srpska (Serb Republic), fighting started among others between the army of Bosnia and Herzegovina on the one
* Translation provided by the Government of the Netherlands and edited by the Secretariat of the United Nations. See too Judgment of the Court of Appeal of The Hague, LJN: BR 5388 of 5 July 2011 (Nuhanović), not reproduced herein.
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hand and the Bosnian-Serb army on the other. In relation to these fights the Security Council increased the presence of UNPROFOR and extended its mandate to Bosnia and Herzegovina by Resolution 758 of 8 June 1992.
2.3 Srebrenica is a city situated in eastern Bosnia and Herzegovina. Due to the continuing armed conflict, a Muslim enclave came into existence in Srebrenica and its surroundings. From the beginning of 1993, the Srebrenica enclave was surrounded by the Bosnian Serb Army.
2.4 On 16 April 1993, the UN Security Council adopted Resolution 819, that among other matters included the following:
“1. Demands that all parties and others concerned treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act;
Demands also to that effect the immediate cessation of armed attacks by Bosnian Serb paramilitary units against Srebrenica and their immediate withdrawal from the areas surrounding Srebrenica;
(. . . )
Requests the Secretary-General, with a view to monitoring the humanitarian situation in the safe area, to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings; demands that all parties and others concerned cooperate fully and promptly with UNPROFOR towards that end; and requests the Secretary-General to report urgently thereon to the Security Council;
Reaffirms that any taking or acquisition of territory by the threat or use of force, including through the practice of “ethnic cleansing”, is unlawful and unacceptable;
Condemns and rejects the deliberate actions of the Bosnian Serb party to force the evacuation of the civilian population from Srebrenica and its surrounding areas as well as from other parts of the Republic of Bosnia and Herzegovina as part of its overall abhorrent campaign of ‘ethnic cleansing’;”
2.5 Pursuant to Resolution 824 of the Security Council of 6 May 1993, the number of safe areas was increased.
2.6 On 15 May 1993, the UN and Bosnia and Herzegovina signed the Agreement on the status of the United Nations Protection Force in Bosnia and Herzegovina (hereinafter: SOFA). Art. 6 of the SOFA stipulated that “the Government [Court: of Bosnia and Herzegovina] undertakes to respect the exclusively international nature of UNPROFOR.”
2.7 In Resolution 836 of 4 June 1993, the UN Security Council decided among other matters:
“4. Decides to ensure full respect for the safe areas referred to in Resolution 824 (1993);
Decides to extend to that end the mandate of UNPROFOR in order to enable it, in the safe areas referred to in Resolution 824 (1993), to deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of military or paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina and to occupy some key points on the ground, in
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addition to participating in the delivery of humanitarian relief to the population as provided for in Resolution 776 (1992) of 14 September 1992;
(. . . . )
Calls upon Member States to contribute forces, including logistic support, to facilitate the implementation of the provisions regarding the safe areas, expresses its gratitude to Member States already providing forces for that purpose and invites the Secretary-General to seek additional contingents from other Member States;
Authorizes UNPROFOR, in addition to the mandate defined in Resolutions 770 (1992) of 13 August 1992 and 776 (1992), in carrying out the mandate defined in paragraph 5 above, acting in self-defense, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys;
Decides that, notwithstanding paragraph 1 of Resolution 816 (1993), Member States, acting nationally or through regional organizations or arrangements, may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR, all necessary measures, through the use of air power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9 above;”.
2.8 In his report dated 14 June 1993, the UN Secretary-General provided an analysis of the options for the implementation of Resolution 836. The report includes the following:
“5. A military analysis by UNPROFOR has produced a number of options for the implementation of Resolution 836 (1993), with corresponding force levels. In order to ensure full respect for the safe areas, the Force Commander of UNPROFOR estimated an additional troop requirement at an indicative level of approximately 34,000 to obtain deterrence through strength. However, it would be possible to start implementing the Resolution under a “light option” envisaging a minimal troop reinforcement of around 7,600. While this option cannot, in itself, completely guarantee the defense of the safe areas, it relies on the threat of air action against any belligerents. Its principle advantage is that it presents an approach that is most likely to correspond to the volume of troops and material resources which can realistically be expected from Member States and which meet the imperative need for rapid deployment. ( . . . )
This option therefore represents an initial approach and has limited objectives. It assumes the consent and cooperation of the parties and provides a basic level of deterrence, with no increase in the current levels of protection provided to convoys of the Office of the United Nations High Commissioner for Refugees (UNHCR). It does however maintain provision for the use of close air support for self-defense and has a supplementary deterrent to attacks on the safe areas. ( . . . )”.
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2.9 In Resolution 844 of 18 June 1993, the Security Council decided to strengthen UNPROFOR according to the recommendation of the Secretary-General in his report of
14 June 1993 under 6.
2.10 On 3 September 1993, the Dutch Permanent Representative to the United Nations offered a battalion of the Airborne Brigade to the Military Adviser of the UN Secretary-General mainly for the implementation of Resolution 836 regarding the safe areas. That proposal was repeated to the Secretary-General by Defense Minister Ter Beek on 7 September 1993. The Secretary-General accepted this proposal on 21 October 1993.
2.11 On 3 March 1994, the Dutch battalion of the Airborne Brigade (“Dutchbat”) relieved the Canadian detachment that was present in Srebrenica. The main force of Dutchbat was stationed in the Srebrenica enclave. One infantry company was quartered in the city of Srebrenica, the other units were quartered outside of the city at an abandoned industrial premises in Potocári (the “compound”).
2.12 In the period that is relevant for this case, the following persons held the positions outlined below.
The (French) Lieutenant General Janvier was Force Commander of UNPF, since 1 April 1995 the new name of the original UNPROFOR. The UNPF-headquarters were located in Zagreb, Croatia.
The (British) Lieutenant General Smith was Commander of BH Command, since May 1995 named HQ UNPROFOR. Deputy Commander of HQ UNPROFOR was the (French) General Gobillard. The (Dutch) Brigade General Nicolai was Chief of Staff of HQ UNPROFOR. His Military Assistant was the (Dutch) Lieutenant Colonel De Ruiter. HQ UNPROFOR was situated in Sarajevo, Bosnia and Herzegovina.
Three regional headquarters resorted under HQ UNPROFOR, including the North East Sector in Tuzla. The (Norwegian) Brigade General Haukland was in charge...
Chapter VIII. Decisions of national tribunals
A. The Netherlands 1. Judgment of the Court of Appeal of The Hague, LJN: BR5386 of 5 July 2011 (Mustafić et al.) B. The Republic of the Philippines 1. Decision of the Supreme Court of the Philippines: Bayan Muna, as represented by Rep Satur Ocampo, et al., Petitioners, v. Alberto G. Romulo in his capacity as Executive Secretary and Blas F. Ople, in his capacity as Secretary of Foreign Affairs, ... (see full summary)
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