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2011 | André Nollkaemper; ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’

in Amsterdam Law School Legal Studies Research Paper No. 2011-29 Amsterdam Centre for International Law No. 2011-11

This article studies important legal implications of the Dutch Appeal Court’s decisions in the Nuhanovic and Mustafic cases (2011 – see our cases page). If not overturned by the Supreme Court, the author considers that ‘the decisions of the Court of Appeal will stand as groundbreaking rulings on the possibility of dual attribution of conduct to the United Nations (UN) and a troop contributing state. Although in this case responsibility for the failure to protect four specific refugees was attributed to the Dutch State, the Court stated that it cannot be ruled out that the application of [the effective control] criterion results in the possibility of attribution to more than one party.’ The author cautions that the proper basis for dual attribution is not yet well established or supported by sufficient practice but welcomes this decision for its potential clarification of the law relating to dual attribution. 

In addition, the ruling reaffirms the “effective control” test as the standard for determining whether responsibility for the acts of perpetrators can be attributed to their superiors/commanders. Also of interest is the Court’s position on the applicability of the Human Rights standards, as codified in the ECHR and ICCPR, to peacekeeping missions.