Dual attribution: liability of the Netherlands for conduct of Dutchbat in Srebrenica

The Dutch Court of Appeal of The Hague recently held that the Netherlands committed a wrongful act by expelling four Bosnian nationals from the protected compound of Dutchbat after the fall of Srebrenica in 1995. In doing so, the Court of Appeal set out the test of attribution as one of effective control and diverged from the case law of the European Court of Human Rights. The Court held the standard of effective control must be assessed by the possibility for the state to exercise control over the actions of its nationals as well as in the concrete circumstances of each case. The Court thus reasoned that effective control in peacekeeping operations denotes both normative control and factual control by the troop-contributing state. The Court went on to examine the wrongfulness of the actions taken by Dutchbat and based its determinations of wrongfulness on national law as well as international human rights treaties. The criterion of effective control as laid down by the Court allows for the possibility of dual attribution between the United Nations and a troop-contributing state in peacekeeping operations.