Uitspraak ECLI:NL:HR:2019:1284

Deze uitspraak heeft betrekking op het rechtsgebied Civiel recht,Internationaal publiekrecht en is gepubliceerd door de Raad voor de Rechtspraak op 19-07-2019. De uitspraak is gedaan door Hoge Raad op 19-07-2019, deze uitspraak is bekend onder de European Case Law Identifier (ECLI) ECLI:NL:HR:2019:1284, het zaaknummer waarop deze uitspraak betrekking heeft is 17/04567 (Eng)


Bron: Rechtspraak

ECLI:NL:HR:2019:1284:DOC
nl

SUPREME COURT OF THE NETHERLANDS

CIVIL LAW DIVISION

Number

Date

JUDGMENT

In the matter of

THE STATE OF THE NETHERLANDS (Ministry of General Affairs, Ministry of Defence and Ministry of Foreign Affairs),with its official seat in The Hague, APPELLANT in cassation, respondent in the cross-appeal in cassation,hereinafter: "the State",counsel: K. Teuben,
versus

1. [respondent 1] ,residing in [residence] ,Bosnia and Herzegovina,
2. [respondent 2] ,residing in [residence] ,Bosnia and Herzegovina,
3. [respondent 3] ,residing in [residence] ,Bosnia and Herzegovina,
4. [respondent 4] ,residing in [residence] ,Bosnia and Herzegovina,
5. [respondent 5] ,residing in [residence] ,Bosnia and Herzegovina,
6. [respondent 6] , residing in [residence] ,Bosnia and Herzegovina,
7. [respondent 7] ,residing in [residence] ,Bosnia and Herzegovina,
8. the heirs of [respondent 8] ,most recently residing in [residence] ,Bosnia and Herzegovina,
9. [respondent 9] ,residing in [residence] ,Bosnia and Herzegovina,
10. [respondent 10] ,residing in [residence] , Bosnia and Herzegovina,
11. the foundation under Dutch law STICHTING MOTHERS OF SREBRENICA,with its official seat in Amsterdam,
RESPONDENTS in cassation, appellants in the cross-appeal in cassation,respondents 1 through 10 hereinafter: “ [respondents] ”, respondent 11 hereinafter: “the Foundation”, and respondents 1 through 11 hereinafter: “the Foundation et al.”,counsel: J. de Bie Leuveling Tjeenk and M.J. Schenck.
For the course of the proceedings in the fact-finding instances, the Supreme Court refers to:a. the judgment in the case C/09295247 / HA ZA 07-2973 of the District Court of The Hague of 16 July 2014;b. the judgment in the cases 200.158.313/01 and 200.160.317/01 of the Court of Appeal of The Hague of 27 June 2017.
The State lodged an appeal in cassation against the judgment of the Court of Appeal. The Foundation et al. lodged a cross-appeal in cassation.The parties each submitted a statement of defence moving that the other party's appeal be denied.The case was explained orally and in writing on behalf of the parties by their respective counsels. The opinion of Advocate General P. Vlas is that the case in the principal appeal should be quashed, with referral, and that the cross-appeal in cassation should be rejected.The counsel of the Foundation et al. have responded to that opinion in writing.
1. Course of the proceedings

2

Introduction

2.1.1 This case concerns the events that took place in 1995 with regard to the fall of the city of Srebrenica in 1995. Further to those events, the Supreme Court already delivered a judgment in two previous proceedings.In 2012, the Supreme Court held in proceedings that were initiated by the Foundation and [respondents] against the United Nations (hereinafter also referred to as “UN”) that the UN has immunity from jurisdiction.The ECtHR held that this immunity does not result in a violation of Article 6 of the ECHR.In 2013, the Supreme Court held that the State acted wrongfully by sending [A] and family members of [B] away from the compound of Dutchbat on 13 July 1995, where they were staying at that time. This conduct was held to be wrongful due to the knowledge Dutchbat meanwhile had about the risks they would be exposed to.In the present case, the Foundation and [respondents] are holding the State liable for the acts and omissions of Dutchbat in the period preceding and following the fall of the city of Srebrenica. They claim that Dutchbat did too little to stop the advance of the Bosnian Serbs and to protect the population of Bosnian Muslims. Dutchbat also acted wrongfully in their opinion by cooperating with the evacuation of the refugees who had fled to the mini safe area of Dutchbat. During that evacuation the male refugees were separated from the other refugees by the Bosnian Serbs and were deported, after which they were murdered.The District Court held that by virtue of a wrongful act the State is liable for the damage the persons represented by the Foundation have suffered as a result of Dutchbat's cooperation in the deportation of male refugees who were deported and then killed by the Bosnian Serbs in the afternoon of 13 July 1995. The District Court denied all other claims of the Foundation et al.The Court of Appeal held on appeal that the State acted wrongfully in two respects: (i) by facilitating the separation of the male refugees by the Bosnian Serbs on 13 July 1995, by allowing the refugees to go to the buses in groups and through a sluice, and (ii) by not giving the male refugees who were inside the compound on 13 July 1995 the choice of staying in the compound and thus denying them the 30% chance of not being exposed to the inhumane treatment and executions by the Bosnian Serbs. The Court of Appeal ordered the State to compensate the damage as a result of the acts mentioned at (ii).Both the State and the Foundation et al. have put forward complaints in cassation against the judgment of the Court of Appeal.
Below, first the established facts (at 2.1.2) and the course of the proceedings thus far (at 2.2.1-2.2.4) are presented. The following questions will then be discussed.

Can the acts of Dutchbat that took place up until 23:00 on 11 July 1995 under the UN flag be attributed to the State? (see 3.1.1- 3.6.1)

Can the obligation to prevent genocide from Article I of the Genocide Convention be directly applied in these proceedings between civilians and the State? (see 3.7.1-3.7.3)

Which standard must be applied to assess whether the acts of Dutchbat were wrongful? (see 4.2.1-4.2.6)

Did Dutchbat's command know, or ought it reasonably have known, that there was a real risk that the rights of the male refugees to physical integrity and to life would be violated by the Bosnian Serbs? (see 4.3.1-4.4.2)

Was it wrongful for Dutchbat to continue to cooperate on 13 July 1995 in the evacuation of refugees who were staying in the mini safe area outside the compound? (see 4.5.1-4.5.5)

Was it wrongful for Dutchbat not to offer the male refugees who were in the compound the choice of staying behind in the compound? (see 4.6.1-4.6.9)

Was there a real chance that these male refugees, had they been left behind in the compound, would have escaped the Bosnian Serbs? (see 4.7.1-4.7.9)

The established facts

(1) Until 1991, the Socialist Federal Republic of Yugoslavia consisted of six (constituent) republics, i.e. Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. These republics were inhabited by different ethnic and religious groups (Croats, Serbs, Muslims, and others) who formed a majority or a minority in the various republics. Throughout the ages there was both peaceful coexistence and conflict. Conflict always moved along the said ethnic and religious lines. In 1991, the constituent republics Slovenia and Croatia declared themselves independent of the Socialist Federal Republic of Yugoslavia. Subsequently, fighting erupted in both republics.(2) The warring factions in Croatia reached an armistice agreement on 2 January 1992 and accepted a peace plan, which provided for deploying a peacekeeping force under the command of the UN. The United Nations Security Council (hereinafter: the Security Council), by Resolution 743 of 21 February 1992, formed the (hereinafter: UNPROFOR) with its headquarters in Sarajevo. The Resolution reads, :
“ that the situation in Yugoslavia continues to constitute a threat to international peace and security (…),
Recalling

(…)
Convinced

1. the further report of the Secretary-General of 15 and 19 February 1992 (…); 2. to establish, under its authority, a United Nations Protection Force in accordance with the above-mentioned report and the United Nations peace-keeping plan, and requests the Secretary-General to take the measures necessary to ensure its earliest possible deployment; (…) 5. that, in accordance with paragraph 1 of the United Nations peace-keeping plan, the Force should be an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis; (…) 8. all parties and others concerned to comply strictly with the cease-fire agreements signed at Geneva on 23 November 1991 and at Sarajevo on 2 January 1992, and to cooperate fully and unconditionally in the implementation of the United Nations peace-keeping plan; 9. that all parties and others concerned take all the necessary measures to ensure the safety of the personnel sent by the United Nations (…)” As from 1 April 1995 UNPROFOR was renamed (hereinafter: (also) UNPROFOR or UNPF). (3) On 3 March 1992, the (constituent) republic of Bosnia and Herzegovina also declared itself independent of the Socialist Federal Republic of Yugoslavia after a referendum. On 27 March 1992, the Bosnian Serbs (the Serbs living in Bosnia) in turn declared themselves independent of the new state of Bosnia and Herzegovina and declared their own independent state. Subsequently, fighting erupted between the army of Bosnia and Herzegovina, dominated by Bosnian Muslims ( (hereinafter: ABiH)) and the Bosnian Serb army ( (hereinafter: BSA) or (hereinafter: VRS)). (4) By Resolution 758 of 8 June 1992, the Security Council extended the UNPROFOR mandate to include Bosnia and Herzegovina. (5) Srebrenica is a city situated in eastern Bosnia and Herzegovina (hereinafter: the city of Srebrenica). From 1992, eastern Bosnia and Herzegovina was the scene of fighting, first between Muslim fighters and Serbian militias, later between the AbiH and the VRS. As a result, Muslim enclaves developed. The enclave ‘Srebrenica’ was one of them. This enclave, which was controlled by the Muslim fighters and later by the ABiH, consisted of an area of almost 900 square kilometres around the city of Srebrenica in January 1993. After fights with the Bosnian Serbs, this area was reduced to approximately 150 square kilometres around the city of Srebrenica in March 1993.(6) In early 1993, Srebrenica was surrounded and became isolated. VRS stopped relief convoys sent by the (hereinafter: UNHCR) and fired at helicopters. A humanitarian crisis developed with lack of water, food, electricity and medication.(7) Under the circumstances, the then Commander of UNPROFOR, the French general Ph.P.L.A. Morillon (hereinafter: Morillon), accompanied by officials from , visited the besieged and overpopulated Srebrenica on 10 March 1993. On 14 March 1993, he addressed a crowd of Bosnian Muslims, promising them that they were under UN protection and that he would not forsake them. (8) On 16 April 1993 the Security Council adopted Resolution 819, which included:
“1. 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; 2. 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; 3. that the Federal Republic of Yugoslavia (Serbia and Montenegro) immediately cease the supply of military arms, equipment and services to the Bosnian Serb paramilitary units in the Republic of Bosnia and Herzegovina; 4. 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; that all parties and others concerned cooperate fully and promptly with UNPROFOR towards that end; and the Secretary-General to report urgently thereon to the Security Council; 5. 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; 6. 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”; (…) 8. the unimpeded delivery of humanitarian assistance to all parts of the Republic of Bosnia and Herzegovina, in particular to the civilian population of Srebrenica and its surrounding areas and that such impediments to the delivery of humanitarian assistance constitute a serious violation of international humanitarian law; (…) 10. that all parties guarantee the safety and full freedom of movement of UNPROFOR and of all other United Nations personnel as well as members of humanitarian organizations; 11. the Secretary-General, in consultation with UNHCR and UNPROFOR, to arrange for the safe transfer of the wounded and ill civilians from Srebrenica and its surrounding areas and to urgently report thereon to the Council; (…)” (9) On 18 April 1993, VRS-General R. Mladić (hereinafter: Mladić) and AbiH-General S. Halilovic, in the presence of the commander of UNPROFOR, concluded a demilitarisation agreement under which all arms in the city of Srebrenica should be handed over to UNPROFOR. On 8 May 1993, they entered into a supplementary demilitarisation agreement pursuant to which the zone to be demilitarised was extended to include the entire enclave of Srebrenica and it surrounding areas. Subsequently, the Bosnian Serbs were to withdraw their heavy weapons which constituted a threat to the demilitarised zones. These agreements will be referred to hereinafter as the demilitarisation agreements. (10) On 6 May 1993, the Security Council adopted Resolution 824, which extended the regime of Resolution 819 to five other enclaves within Bosnia and Herzegovina.(11) On 15 May 1993, the UN and Bosnia and Herzegovina signed the (also known as the ), which set out the (legal) status of UNPROFOR in Bosnia and Herzegovina.(12) By Resolution 836 of 4 June 1993 the Security Council decided, :
“ its resolutions 819 (1993) (…) and 824 (1993) (…)
Reaffirming

Condemning

(…)
Reaffirming once again

(…)
Deeply concerned

(…)
Determined

(…)
Determining

(…) 3. the unacceptability of the acquisition of territory by the use of force and the need to restore the full sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina; 4. to ensure full respect for the safe areas referred to in resolution 824 (1993); 5. 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 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 addition to participating in the delivery of humanitarian relief to the population as provided for in resolution 776 (1992) (…); 6. that these safe areas are a temporary measure and that the primary objective remains to reverse the consequences of the use of force and to allow all persons displaced from their homes in the Republic of Bosnia and Herzegovina to return to their homes in peace, beginning, , with the prompt implementation of the provisions of the Vance-Owen Plan [Supreme Court: the Peace Plan of January 1993] in areas where those have been agreed by the parties directly concerned;7. the Secretary-General, in consultation, inter alia, with the Governments of the Member States contributing forces to UNPROFOR: (a) To make the adjustments or reinforcement of UNPROFOR which might be required by the implementation of the present resolution, and to consider assigning UNPROFOR elements in support of the elements entrusted with protection of safe areas, with the agreement of the Governments contributing forces; (b) To direct the UNPROFOR Force Commander to redeploy to the extent possible the forces under his command in the Republic of Bosnia and Herzegovina; 8. Member States to contribute forces, including logistic support, to facilitate the implementation of the provisions regarding the safe areas, (…) and invites the Secretary-General to seek additional contingents from other Member States; 9. UNPROFOR, in addition to the mandate defined in resolutions 770 (1992) (…) and 776 (1992), in carrying out the mandate defined in paragraph 5 above, acting in self-defence, 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; 10. 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;(…)” (13) In his report of 14 June 1993, the UN Secretary-General analysed the modalities in which Resolution 836 could be implemented, which included,:
“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 defence 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. (...) 6. 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-defence and as a supplementary deterrent to attacks on the safe areas. (…)” (14) The term “” in the abovementioned report refers to the deployment of air power in direct support of the UN ground forces. “ is not to be confused with the term “”, which refers to an air attack of a destructive nature. The application procedure for consisted of two parts: 1. approval by the UN, by, successively, the sector headquarters in Tuzla, UNPROFOR in Sarajevo, the UNPF headquarters in Zagreb, the under the command of the chief-of-staff in Zagreb, the (Janvier) and the UN Special Envoy for Bosnia and Herzegovina (Akashi), as well as 2. approval by NATO, more particularly by the in Naples, after involvement of the liaison officers in Sarajevo or Zagreb and the (CAOC) of the NATO airbase in Vicenza. (15) The Security Council adopted the option referred to as the ‘light option’ in the above report in its Resolution 844 of 18 June 1993.(16) On 3 September 1993, the Dutch Permanent Representative to the UN offered to the UN Secretary-General military advisor a battalion of the Airmobile Brigade (hereinafter: Dutchbat) for the implementation of Resolution 836 in the referred to therein (term used in paragraph 1 of Resolution 819, (8) above ). On 7 September 1993, the Dutch Minister of Defence repeated this offer to the UN Secretary-General, who accepted it on 21 October 1993. On 12 November 1993, the Dutch Government approved the deployment of Dutchbat.(17) On 3 March 1994, Dutchbat relieved the Canadian regiment present in the Srebrenica enclave. In July 1994, Dutchbat I was relieved by Dutchbat II, which was relieved by Dutchbat III in January 1995. (18) Dutchbat headquarters was set up in an abandoned factory at Potočari (hereinafter: the compound). The compound was situated in the , at approximately five kilometres from the city of Srebrenica. One Dutchbat company was stationed inside the city of Srebrenica. Besides, Dutchbat manned a number of observation posts (hereinafter in the singular also OP, and in the plural also OP’s or Ops).(19) Dutchbat was placed under the command of the UN and functioned as an UNPROFOR contingent. The State had handed over to the UN to carry out the mandate in §5 and §9 of Resolution 836 ((12) above). The handed over to the UN by the State is described, , in the operation order of 14 December 1994 at the relief of Dutchbat II by Dutchbat III. The operation order reads, :
“a. Command (…) Upon arrival in YU [Yugoslavia] Dutchbat is uoc [NATO: operational control (opcon)] of UNPROFOR”.Note 1 to operational control reads:
“. The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control”(20) The command and control handed over to the UN by the State included control over the operational implementation of the mandate by Dutchbat. In this respect, Dutchbat was controlled via the UN chain of command of UNPROFOR, which issued operational orders and instructions to the Dutchbat Commander. The State retained the authority to call back troops, discontinue participation in the operation, and to discipline soldiers, and retained control over the preparation of the Dutch troops, personnel matters and material logistics.(21) Dutchbat was bound by the codes of conduct and instructions established by the UN chain of command: the , the , and the drafted by the . The Ministry of Defence laid down these codes of conduct and instructions, plus a number of existing rules and rules especially drafted for this mission, in (Dutch) Standing Order 1 (NL) UN Infbat. (22) In the period relevant to this case and in so far as significant here, the following individuals held the following positions:
Within the UN hierarchy:

UN:

i) the UN Secretary-General was Boutros Boutros-Ghali (hereinafter: the UN Secretary-General);ii) the Special Envoy to the UN for Bosnia and Herzegovina was Yasushi Akashi;
UNPROFOR in Zagreb (Croatia) (from 1 April 1995 UNPF):

iii) the was French Lieutenant General B. Janvier (hereinafter: Janvier);iv) the Chief of Staff was the Dutch Brigadier General A.M.W.W.M. Kolsteren;v) the Chief of Operations was the Dutch Colonel J.H. de Jonge;
BOSNIA AND HERZEGOVINA COMMAND UNPROFOR in Sarajevo (Bosnia and Herzegovina) (from May 1995 HQ UNPROFOR):

vi) the Commander was the British Lieutenant General R.A. Smith (hereinafter: Smith);vii) the Deputy Commander was the French General H. Gobilliard (hereinafter: Gobilliard);viii) the Chief of Staff was the Dutch Brigadier General C.H. Nicolai (hereinafter: Nicolai);ix) Assistant Chief of Staff was the Dutch Lieutenant Colonel J.A.C. de Ruiter (hereinafter: De Ruiter);
Sector North East in Tuzla (unit of HQ UNPROFOR):

x) the Commander was the Norwegian Brigadier General H. Haukland; xi) the Chief of Staff and Deputy Commander was the Dutch Colonel C.L. Brantz;
Dutchbat III in Srebrenica:

xii) the Battalion Commander was the Dutch Lieutenant Colonel Th.J.P Karremans (hereinafter: Karremans);xiii) the Deputy Battalion Commander was the Dutch Major R.A. Franken (hereinafter: Franken).Also appearing in the documents are the names of the Dutch Captain J.R. Groen (hereinafter: Groen) and the Dutch Second Lieutenant J.H.A. Rutten (hereinafter: Rutten). Groen was Commander of the B-Company. Rutten was Patrol Coordinator of C-Company and intelligence officer.
Non-UN

In the Netherlands

xiv) the Minister of Defence was J.J.C. Voorhoeve (hereinafter: Minister Voorhoeve);xv) Chief of the Defence Staff was Lieutenant General H.G.B. van den Breemen (hereinafter: Van den Breemen);xvi) Deputy Commander of the Royal Netherlands Army (hereinafter: RNLA) was Major General A.P.P.M. Van Baal (hereinafter: Van Baal).
The (DCCC) monitored from The Hague what happened during the peacekeeping operation from a policy perspective.xvii) the Deputy Chief of Defence Staff (Operations) at the DCCC was Commodore C.G.J. Hilderink.
On behalf of a NATO officer was present in Zagreb to liaise with the Commander-in-Chief Allied Forces Southern Europe headquarters in Naples, namely the American Admiral Leighton Smith.(23) The supply of goods to the went by convoy through largely Bosnian Serb territory. From mid-1994, the Bosnian Serbs refused passage to convoys on their way to the as a result of which not all humanitarian aid and food intended for the population in the reached its destination. The provisioning of Dutchbat suffered from this, too. (24) On 25 and 26 May 1995, NATO carried out air attacks () on targets close to the Bosnian Serb government quarter in Pale. Next, the Bosnian Serbs took hundreds of UNPROFOR soldiers captive to use them as hostages in order to ward off further attacks. On 28 May 1995, the Bosnian Serbs occupied two Britbat observation posts and took the British soldiers hostage, after which Britbat retreated to its compound. Pending further orders from Smith, Nicolai and Karremans decided upon consultation that preparations should be made to abandon the observation posts within the hour if necessary. The observation posts would be maintained until further notice or until they were under serious threat, subject to instructions by Nicolai that no unnecessary risk should be run.(25) After the said , UNHCR convoys only sporadically succeeded in reaching Srebrenica, as a result of which the UN could only provide 30% of the food needs in June 1995 (NIOD report, , 2002 (hereinafter: NIOD report), p. 1912).(26) On 29 May 1995, Smith issued a which read, in so far as relevant here:
“7. I have been directed, today 29 May 95, that the execution of the mandate is secondary to the security of UN personnel. The intention being to avoid loss of life defending positions for their own sake and unnecessary vulnerability to hostage taking. My interpretation of this directive is at paragraph 9b”.

Paragraph 9b reads as follows, in so far as relevant here:

“Positions that can be reinforced, or it is practical to counter attack to recover, are not to be abandoned. Positions that are isolated in BSA territory and unable to be supported may be abandoned at the Superior Commanders discretion when they are threatened and in his judgment life or lives have or will be lost. (…).” (27) On 3 June 1995, shootings occurred at OP-E, and OP-E was surrounded by Bosnian Serbs. Dutchbat then requested close air support. The request was denied. Dutchbat then abandoned this observation post in a YPR (a light tracked armoured vehicle), while being shot at by the Bosnian Serbs. Dutchbat did not set fire to OP-E as was a in the event of forced abandonment of an OP (NIOD report, p. 2005).(28) On 6 July 1995, the Bosnian Serbs launched an attack on the under the command of Mladić. When the Bosnian Serbs approached the city of Srebrenica, the objective of this attack was extended to occupying the city of Srebrenica.(29) During this attack on the the ABiH asked Dutchbat repeatedly to be given (back) the arms handed in under the demilitarisation agreements. Dutchbat denied these requests.(30) On 6 July 1995, fighting also occurred at observation post OP-F between the Bosnian Serbs and ABiH (NIOD report, p. 2100). In the process, observation post OP-F was hit by shells fired from Bosnian Serb tanks twice. That day, the Bosnian Serbs also shelled the city of Srebrenica. A request for by Dutchbat that same day was denied. (31) On 8 and 9 July 1995, Dutchbat abandoned the observation posts OP-F, OP-U, OP-S, OP-K, OP-D and (upon retreat) OP-M. When retreating, Dutchbat soldiers did not fire at the Bosnian Serbs. They allowed Bosnian Serbs to disarm them, handed over armoured vehicles and taught them how to drive them. Also, Dutchbat soldiers departed with the Serbs; they were taken prisoner.(32) In the morning of 9 July 1995, airplanes appeared above the on the request of HQ UNPROFOR (‘). UNPROFOR Zagreb did not take a decision on a request for made later that day.(33) In the evening of 9 July 1995, Dutchbat received verbal instructions to take up so-called to put up a barrier against the advance of the Bosnian Serbs. The order confirming the verbal instructions, drawn up in the Dutch language by De Ruiter and signed by Nicolai, reads as follows:
“With the means available you must take up such “blocking positions” that further breakthrough and advance of VRS units towards the city of Srebrenica are prevented. You must do everything possible to reinforce these positions, also in respect of arming them. These blocking positions must be recognisable on the ground. You can expect the supplementary means promised as from Monday, 10 July 1995.” The VRS was informed that if it attacked a , would be deployed (NIOD report, p. 2151).(34) In the early morning of Monday, 10 July 1995, Dutchbat took up four (Bravo 1-4); Bravo-1 west of the city of Srebrenica, Bravo-2 and 4 on the road from Zeleni Jadar to Srebrenica and Bravo-3 east of the city of Srebrenica. As the position of Bravo-2 was within range of Bravo-4, in actual practice Bravo-2 was not used. At 7:13 p.m. Groen ordered the Bravo-1 crew to retreat to Srebrenica. The crews manning Bravo-3 and 4 also retreated. No was given that day. In the night of 10 to 11 July 1995, the soldiers manning Bravo-1, 3 and 4 stayed in the city of Srebrenica. (35) On 10 July 1995, Minister Voorhoeve said in current affairs programme NOVA on Dutch television:
“In the next few weeks we have to give topmost priority to the safety of Dutch military personnel. The commanders are instructed to avoid victims first and foremost. I want to see all men and women return home safely. (...) We have spoken to all those commanders, by telephone and otherwise in the past few days. We do not want Dutch personnel to be at risk, to hold untenable positions. Be sensible and bring all our boys and girls home safe and sound.”

The said instruction to Dutchbat to prevent victims is also known as ‘the Voorhoeve instruction’.(36) In the early evening of 10 July 1995, Karremans and Franken decided to admit refugees to the compound in numbers that would fit into the large vehicle halls within the compound. That evening a hole was made in the fence in the south-western corner of the compound for that purpose. No refugees entered the compound that evening.(37) On Tuesday, 11 July 1995 at around 8:00 a.m., Dutchbat requested . The request was denied. A subsequent request for , made around 10:00 a.m., was approved by the UN around noon and approximately half an hour later by NATO. Bombs were dropped around 2:45 p.m. Around 3:30 p.m. new airplanes took off. They did not drop bombs. was discontinued.(38) On 11 July 1995 Groen ordered Bravo-1 to abandon its position and retreat from Srebrenica towards Potočari together with the Bravo-3 and 4 crew. Franken then ordered Groen to take up a new at the junction to Susnjari, south of the compound. Dutchbat did so around 4 p.m. Under threat of VRS units this was abandoned a few hours later and disarmed by Bosnian Serbs.(39) On 11 July 1995 around 4:30 p.m., the city of Srebrenica fell and was occupied by Bosnian Serbs. (40) Earlier that afternoon, at around 2:30 p.m., a stream of Bosnian Muslim refugees had started to move from the city of Srebrenica to the compound. In the course of the afternoon of 11 July 1995, refugees were admitted to the compound through the hole in the fence until the vehicle halls were full. At 4:30 p.m. the gates to one of the factory sites near the compound were opened. At that point, the hole in the fence had already been closed.(41) After the fall of the city of Srebrenica a was set up, consisting of the compound in Potočari ( (18) above) and a nearby area to the south which housed halls and a coach depot. The area was cordoned off with tape and the access roads with armoured vehicles. Control posts were set up at the edges. Maybe as many as 30,000, but at least approximately 20,000 to 25,000 refugees sought refuge in the . About 5,000 of them were put up in the vehicle halls in the compound. (42) Approximately 10,000 to 15,000 men from the did not flee to the , but instead fled to the woods surrounding the city of Srebrenica (hereinafter: the woods). Around 6,000 of these men fell into Bosnian Serb hands. (43) Circumstances in the were poor. There was little food, not enough water for all refugees, a shortage of medical resources and a lack of hygiene. Temperatures rose to 35 °C in that period. Circumstances deteriorated visibly on 12 and 13 July 1995. (44) On 11 July 1995 at 6.45 p.m. Karremans received a fax from Gobilliard with the following contents (hereinafter also: Gobilliard’s order):
“a. Enter into local negotiations with BSA forces for immediate cease-fire. Giving up any weapons and military equipment is not authorised and is not a point of discussion. b. Concentrate your forces into the Potočari Camp, including withdrawal of your Ops. Take all reasonable measures to protect refugees and civilians in your care. c. Provide medical assistance and assist local medical authorities. d. Continue with all possible means to defend your forces and installation from attack. This is to include the use of close air support if necessary. e. Be prepared to receive and coordinate delivery of medical and other relief supplies to refugees.”
(45) In the evening of 11 July 1995, Janvier, Van den Breemen and Van Baal spoke in Zagreb about the situation that had arisen after the fall of Srebrenica. (46) In the evening of 11 July 1995, Karremans spoke with Mladić about the evacuation of refugees from the twice, and in the morning of 12 July 1995 a third time. Mladić then mentioned the order in which the refugees would be transported. Mladić informed Karremans that males between the ages of 17 and 60 would first be screened for war crimes (, NIOD report, p. 2641). After it had initially been agreed that Dutchbat would supervise the evacuation and arrange transport for the refugees, in his last conversation with Karremans Mladić disclosed that he himself would take care of their transport. (47) On 12 July 1995, the Security Council adopted Resolution 1004 ‘’, which included, , the following:
“1. that the Bosnian Serb forces cease their offensive and withdraw from the safe area of Srebrenica immediately; (…) (…) 6. the Secretary-General to use all resources available to him to restore the status as defined by the Agreement of 18 April 1993 of the safe area of Srebrenica in accordance with the mandate of UNPROFOR, and calls on the parties to cooperate to that end.(…)”
This Resolution was not complied with. The Bosnian Serbs did not heed the call to cease their offensive and withdraw from the immediately, nor did the Resolution result in an order to Dutchbat to take in positions in and around Srebrenica or otherwise attempt to recapture Srebrenica by military intervention.(48) In the early afternoon of 12 July 1995, on the orders of the Bosnian Serbs, buses and trucks (hereinafter always jointly: buses) arrived at the . At around 2 p.m., the evacuation of the refugees from the started. A massive run on the buses ensued, and there was a threat of refugees trampling each other. The first buses were overcrowded. (49) In consultation with the Bosnian Serbs, Dutchbat then supervised the movement to the buses by creating a kind of corridor of vehicles and a human cordon of Dutchbat soldiers and tape. The refugees, called out in numbers by the Dutchbat soldiers, passed through this ‘corridor’ to the buses ( also NIOD report, p. 2649). The buses then transported the refugees to Tišca, from where, after marching for kilometres to Kladanj and a bus ride arranged by the UN, they reached a provisional shelter at Tuzla airport (, NIOD report, p. 2651).(50) The Bosnian Serbs took male refugees from the rows of refugees on their way to the buses. In the afternoon of 12 July 1995, the Bosnian Serbs started to transport these male refugees in separate buses. (51) In the evening of 12 July 1995, the evacuation of refugees stopped. By that time, 4,000 to 5,000 refugees had been evacuated. (52) On 12 and 15 July 1995, Dutchbat abandoned the remaining observation posts (OP-A, OP-C, OP-N, OP-P, OP-Q, and OP-R). On 12 July 1995 around 10 p.m., the Bosnian Serbs dropped off the crew of observation post OP-P at the compound. The crew of observation post OP-C was escorted to Milići by the Bosnian Serbs. The crews of the other observation posts were taken to Bratunac by the Bosnian Serbs.(53) Various Dutchbat soldiers observed war crimes committed by Bosnian Serbs between 10 and 13 July 1995. (54) Dutchbat did not report the war crimes observed by its soldiers within the UN chain of command immediately. Karremans orally informed the in Sarajevo of the find of nine bodies by Rutten on Thursday morning 13 July 1995, and also brought this to Nicolai’s attention. Furthermore, Karremans claims to have orally reported within the UN chain of command the observation by a Dutchbat soldier of the execution of a refugee, but this report has not been established for a fact. Dutchbat did not report any other war crimes until after the evacuation.(55) In the night of 12 to 13 July 1995, Bosnian Serbs raped female refugees.(56) On 13 July 1995, Franken had a list made of male refugees aged between 15 and 60 who were in the compound, which list contained 251 names. He faxed the list to various national and international authorities and told this to the Bosnian Serbs. About 70 men in the compound refused to have their names taken down on the list for fear of trouble instead of protection.(57) On 13 July 1995, the evacuation was resumed. When the buses appeared in the morning before the Bosnian Serbs did, Dutchbat just started to escort the refugees, including the men, to the buses. A number of these buses left before the Bosnian Serbs arrived over an hour later. En route, the Bosnian Serbs stopped part of these buses and removed the men from them.(58) By the end of the afternoon of 13 July 1995 all refugees in the part of the situated outside the compound had been moved out, and a start was made with moving out the refugees staying within the compound. In the evening of 13 July 1995, according to the at 8 p.m., the evacuation of these refugees was finished.(59) After the fall of Srebrenica, genocide was committed against Bosnian Muslims. As has been established later, buses with male refugees went from Potočari to Bratunac. The men who had not gone to the but had fled to the woods and had been taken captive, were also taken to Bratunac. In total, the Bosnian Serbs killed approximately 7,000 male Bosnian Muslims from the in a number of different locations in mass executions, which started on 13 July 1995 in the area north of the city of Srebrenica and subsequently took place from 14 through 17 July 1995 in several places north of Bratunac. Moreover, the Bosnian Serbs killed between 100 and 400 Bosnian Muslim men in Potočari on 12 and 13 July 1995. (60) Dutchbat abandoned the compound on 21 July 1995. (61) [respondents] are the mothers, wives and/or daughters of the killed Bosnian Muslims who had fled into the woods or who had been staying inside the mini safe area outside the compound and were evacuated on 12 or 13 July 1995.(62) The Foundation is a legal entity under Dutch law with full legal authority and has as its objective – in essence – to represent the interests of approximately 6,000 surviving relatives of the victims of the fall of Srebrenica. Based on Article 3:305a DCC, it is entitled to institute the claims in dispute, with the exception of claiming (an advance payment on) monetary compensation.
The proceedings before the District Court and the Court of Appeal

2.2.1
In these proceedings, the Foundation et al. are seeking the following, in so far as relevant in cassation:(i) a judicial declaration entailing that the State acted wrongfully in respect of [respondents] and the persons whose interests are represented by the Foundation;(ii) a judicial declaration entailing that the State violated its obligation to prevent genocide within the meaning of the Genocide Convention; and(iii) an order for the State to compensate the damage that was suffered, to be determined by the court in follow-up proceedings.
2.2.2
In essence, the Foundation et al. have based the claim above in 2.2.1 at (i) on the argument that Dutchbat did too little to stop the advance of the Bosnian Serbs and to protect the population of the safe area around Srebrenica, and that during the evacuation of the refugees who were staying at the mini safe area, Dutchbat cooperated in the separation of the male refugees from the other refugees and cooperated in the evacuation of male refugees who were staying in the compound.
2.2.3
The District Court rendered a judicial declaration entailing that by virtue of a wrongful act, the State is liable for the damage suffered by the people represented by the Foundation as a result of Dutchbat's cooperation in the deportation of the male refugees who were deported from the compound and subsequently killed by the Bosnian Serbs in the afternoon of 13 July 1995. The District Court denied all other claims of the Foundation et al.
2.2.4
The Court of Appeal set aside the judgment of the District Court and, in a new judgment, rendered a judicial declaration entailing that the State acted wrongfully (i) by facilitating the separation of the male refugees by the Bosnian Serbs on 13 July 1995 by allowing the refugees to go to the buses in groups and through ‘a sluice’, and (ii) by not giving the male refugees who were in the compound on 13 July 1995 the choice of staying in the compound, and thus denying them a 30% chance of not being subjected to inhumane treatment and executions by the Bosnian Serbs. The Court of Appeal ordered the State to compensate the damage that was caused by the acts mentioned at (ii), to be determined by the court in follow-up proceedings. In this context, the Court of Appeal held – in essence – the following.
Attribution to the State – effective control and ultra vires acts

For the question of whether and to what extent the acts that took place under the UN flag must be attributed to the State, the rules of written and unwritten international law apply, including in particular the rules laid down in the (hereinafter “DARIO”) and the (hereinafter “DARS”) that were drawn up by the (ILC). (para. 11.2)It is not in dispute that the acts of Dutchbat can be attributed to the State if the State exercised effective control of those acts. This comes down to the State's factual control over the specific acts or the omission of those acts, in addition to which all factual circumstances and the special context of the case must be taken into account. As command and control over Dutchbat had been transferred to the UN, in principle the UN exercised effective control over Dutchbat. Whether the exceptional situation occurred in one or more specific cases that the State also exercised effective control over aspects of the conduct of Dutchbat is something the Foundation et al. has to argue with sufficient substantiation and must prove if it is contested. (para. 12.1)Effective control by the State cannot be derived from statements entailing that casualties must be avoided and that personal safety has priority. The Foundation et al.'s argument about instructions being given regarding the blocking positions is disregarded by the Court of Appeal, as the Court of Appeal cannot establish that instructions about blocking positions were given from which effective control by the State can be derived. (paras. 12.2-12.12)It is not in dispute in this case that a national contingent (such as Dutchbat) that has been made available to the UN for UNPROFOR qualified as an “organ” of the UN. It follows from Articles 7 and 8 of the DARIO that Dutchbat's acts must be regarded as acts by the UN if these took place “” of the UN, even if they went against instructions. (para. 15.2)It is a fact that Dutchbat never left the observation posts until the fighting troops were so close that they were seen as a threat and – at the very least – created a fear of mortal danger. The assessment on site of how real these dangers were, whether promised additional resources would arrive in time, whether reinforcement would be possible and whether it would be useful to fight the Bosnian Serbs through the exchange of fire, concerns military assessments and subsequently decisions that were taken in Dutchbat's UN capacity and assignment. These acts cannot be attributed to the State because it did not exercise control over these acts. (para. 17.3)The decisions not to open fire on the Bosnian Serbs were always taken within the UN line of command and in view of Dutchbat's capacity and assignment as Peacekeepers, without the State having specific say in those decisions. This also applies to the assessments of the option to prevent weapons and equipment from being captured when an observation post is taken over. (para. 17.4)The Court of Appeal will not take a position on whether Dutchbat members did or did not advise or tell Bosnian men to flee to the woods and if so, whether this was contrary to the purport of Gobilliard's order. There is no evidence to demonstrate that the State had any factual and therefore effective control over such instructions. In view of the rulings in paras. 12-17 and taking into account the fact that no facts or circumstances to the contrary have been put forward, it must also be assumed that when the stream of refugees started to flow and continued to flow up to 23:00 on 11 July 1995 at the latest, Dutchbat assumed positions and performed acts in its capacity and assignment as UN Peacekeepers – visibly so – and on the basis of the estimates of the situations made in that capacity by their superiors in the UN chain of command. The directions given to the male Bosnian Muslims up to that point, therefore, were also given in the performance of the UN function. Laying down and surrendering arms while giving the Bosnian Serbs notice of the same was also done in that capacity, without the control by the State. (para. 26.1)It has been established that the UN commanders on site, Karremans and Franken, decided early in the evening of 10 July 1995 to allow as many refugees into the UN compound as could fit into the large vehicle halls on the compound, and that this ultimately involved about five thousand people. They acted within their capacity and assignment as UN Peacekeepers. There was no State control at the time of that decision with regard to either admitting refugees or the number of refugees to be admitted, or with regard to where they would be allowed to enter: through a hole in the fence. The decisions in this regard cannot be attributed to the State. (para. 27.2)Regarding air support, no facts or circumstances have been put forward that can support the conclusion that the State had effective control of whether or not Dutchbat requested air support at any given time. (para. 29.4)
Interim conclusion

With the foregoing, the Court of Appeal ruled that the disputed operational military combat operations of Dutchbat were performed without the State having factual control regarding the specific acts, and within the official capacity and within the overall functions of these UN troops. As a result, these acts cannot be attributed to the State, not even as acts. (para. 32.1)At 23:00 on 11 July 1995, the State decided together with the UN to have Dutchbat provide the humanitarian aid and the preparations for the evacuation of the refugees in the mini safe area. This is the point at which the transition period commenced in which the State did have effective control of the conduct of Dutchbat in respect of the humanitarian aid to and the evacuation of the refugees in the mini safe area. (para. 32.2)
Direct effect of the Genocide Convention

The “prevention of genocide” is not an accurately defined obligation: various preventative but also repressive methods can be imagined to prevent genocide. Although Article I of the Genocide Convention does provide that the Contracting States undertake to prevent genocide, it does not determine the manner in which they will do so. Article V of the Genocide Convention clearly says that further legislation is needed in that regard. Specific prevention obligations are not included in the Convention. A maximum effort obligation “”, as pronounced by the International Court of Justice on 26 February 2007 in the case between Bosnia-Herzegovina and Serbia and Montenegro – an obligation that applies to all Member States – does not impose any specific obligations that can be directly applied by the national court in a dispute between a citizen and the State. (para. 34.4)
Wrongful conduct– general

Within the context of the assessment according to Article 6:162 DCC, the court must determine whether Dutchbat could have reasonably decided and acted as it did. There is no ground for (more extensive) restraint in that assessment. However, the court must consider in the assessment all facts and circumstances that have been established, in this case including the circumstance that Dutchbat was acting in a war situation and had to take decisions under considerable pressure. (para. 39.2)Dutchbat's command did not know any earlier or later than the evening of 12 July 1995 that the separated male refugees were in real danger of being exposed to torture or to inhumane or humiliating treatment, or of being executed. (para. 51.5, para. 52.7)
The evacuation of refugees who were outside of the compound in the mini safe area

After the Bosnian Serb troops arrived at the mini safe area on 13 July 1995, the evacuation of the refugees continued. In this, the uncontrolled flow of refugees into the buses was obstructed by four armoured vehicles positioned there, ribbons and a human chain of Dutchbat members standing hand-in-hand (hereinafter also: “the sluice”). Dutchbat assembled groups of refugees on an adjacent lot, which groups were subsequently led through the sluice one group at a time. While the refugees were walking to the buses in this manner, the male refugees were identified by the Bosnian Serb troops and separated from the women, children and elderly before they arrived at the buses. (para. 61.1) In practice, this conduct by Dutchbat made it easier for the Bosnian Serbs to separate the male refugees. (para. 61.3)As from 13 July 1995, Dutchbat should have stopped the cooperation in the evacuation it had provided until then, because as a result of the separation the male refugees were being exposed to the real risk of an infringement of the fundamental rights under Articles 2 and 3 ECHR, and Dutchbat knew or at least ought to have known this on 13 July 1995. (para. 61.5)In this regard, the Court of Appeal also considered the highly complicated circumstances on site, known from the case file and put forward by the State, under which Dutchbat was forced to operate and under which it arrived at the choice to continue to cooperate in the evacuation by calling groups forward and using the sluice. The fact that stopping this cooperation would lead to chaos in which the Bosnian Serbs would treat the refugees harshly cannot justify cooperating in the separation of male refugees, resulting in their being subjected to the real risk of torture or inhumane or humiliating treatment, or being executed. Dutchbat thus acted wrongfully by continuing to cooperate in the evacuation on 13 July 1995 by forming groups and using a sluice. (paras. 61.6-61.8) The Court of Appeal deemed it plausible that the men who were outside of the compound still would have fallen into the hands of the Bosnian Serbs and would have been murdered if Dutchbat had refrained from the aforementioned wrongful conduct. The causality, required for attribution of the damage, between the conduct of Dutchbat and the fate of the men is therefore lacking. (para. 64.2)The wrongful conduct of Dutchbat facilitated the serious violation of fundamental rights. That justifies a judicial declaration entailing wrongful conduct, despite the fact that causality has not been established. (para. 65)
The evacuation of male refugees who were inside the compound

Dutchbat had sufficient opportunity and control to warn the male refugees who were inside the compound not to walk outside along with their families on 13 July 1995. (para. 63.2)In any event, Dutchbat could have explained the risks for the male refugees and could and should have given them the choice of staying inside the compound. In view of the greater danger to which the male refugees were exposed in the hands of the Bosnian Serbs, it must be assumed that the men would have voluntarily remained inside the compound if they had known, as Dutchbat did, what was waiting for them outside. (para. 63.3)The State has insufficiently substantiated that the scarcity of water, food, medicine and sanitary facilities was so urgent that it was reasonable for the State, knowing that the men ran a real risk of being exposed to inhumane treatment or of being executed, to decide to also cooperate in the evacuation of the 350 men from the compound already on 13 July 1995. (para. 63.4) The State has not furnished sufficient proof to assume that if the men had not come out immediately, the Bosnian Serbs would have prematurely stopped the evacuation of the women, children and elderly. Nothing indicates that the Bosnian Serbs knew that there were still hundreds of men inside the vehicle hall. Nor has it been asserted that on 13 July 1995, during the evacuation from the compound, the Bosnian Serbs conducted an inspection of the vehicle hall. (para. 63.5)If the Bosnian Serbs had known or discovered that there were men inside the compound and had stopped the evacuation for that reason, then Dutchbat could have still decided at that time that the men should leave the compound. There is no ground for assuming that, upon discovering the men, the Bosnian Serbs would have immediately used their weapons against those present inside the compound. (para. 63.6)Knowing that the men, upon separation by the Bosnian Serbs, ran a real risk of being exposed to inhumane treatment or being executed, Dutchbat should not have unconditionally allowed the men inside the compound to go to the buses with the other refugees, but should have explicitly given them the choice of staying behind while the women, children and elderly were evacuated from the compound. However, Dutchbat directly allowed the men to walk from the vehicle hall in the compound into the hands of the Bosnian Serbs, in the same manner as the rest of the refugees. In doing so, Dutchbat acted wrongfully. (para. 63.7)If Dutchbat had kept the men in the compound back, the Bosnian Serbs would have discovered these men quickly, before Dutchbat was evacuated. (para. 66.3)It has not been established with sufficient certainty that the Bosnian Serbs would have left these men undisturbed. (para. 67.1)The chance that the male refugees would have survived was not so small that it had to be deemed no longer realistic. Relevant in particular in this regard is that until then, the Bosnian Serbs had left the UN troops in the compound alone. Weighing all arguments, the Court of Appeal determined that the chance that the men would have escaped the inhumane treatment and execution by the Bosnian Serbs if they had remained in the compound was 30%. By not offering the men the choice of remaining in the compound, after informing them of the risks they would be running if they left the compound, on 13 July 1995, Dutchbat deprived them of this chance. (para. 68)The surviving relatives of the men who were in the compound on 13 July 1995 are therefore entitled to compensation of 30% of the damage suffered. (para. 69.1)
3

Can the acts of Dutchbat that took place up until 23:00 on 11 July 1995 under the UN flag be attributed to the State?

3.1.1
In parts 1 and 2 of their grounds for cassation, the Foundation et al. have directed complaints against the Court of Appeal's opinion that the conduct of Dutchbat that took place under the UN flag up until 23:00 on Tuesday, 11 July 1995 cannot be attributed to the State.
3.1.2
The Court of Appeal ruled that it is not in dispute that the conduct of Dutchbat can be attributed to the State if the State had effective control of that conduct. As command and control of Dutchbat had been transferred to the UN, in principle the UN had effective control of Dutchbat. The argument as to whether an exception occurred in one or more specific instances, entailing that not only the UN but also the State had effective control, must be put forward by the Foundation et al. with sufficient substantiation and, if disputed, proven. (para. 12.1) These opinions have not been contested in cassation.
3.2
In order to determine the conditions under which conduct may be attributed to a state or an international organization as developed in unwritten international law, alignment must be sought – as the Court of Appeal undisputedly has done (para. 11.1) – with two sets of articles drawn up and adopted by the UN's (ILC): the from 2001 (hereinafter: DARS) and the from 2011 (hereinafter: DARIO).
3.3.1
For answering the question of whether conduct can be attributed to a state, the provisions in the DARS, , , of which Articles 4 and 8 read as follows:
Conduct of organs of a State

1. The conduct of any State organ shall be considered an act of that State under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organization of the State, and whatever its character as an organ of the central Government or of a territorial unit of the State.2. (…)
Article 8

Conduct directed or controlled by a State

The conduct of a person or group of persons shall be considered an act of a State under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that State in carrying out the conduct.”
3.3.2
It follows from Articles 4 and 8 DARS that the conduct of Dutchbat may be attributed to the State if it is deemed to be an organ of the State (Article 4(1) DARS) or if Dutchbat was in fact acting of the State (Article 8 DARS).
3.3.3
The Court of Appeal determined that in this case, it is not in dispute between the parties that Dutchbat was deemed to be an “organ” of the UN (para. 15.2). This opinion is not disputed in cassation. It must be assumed, therefore, that Dutchbat was not an organ of the State within the meaning of Article 4(1) DARS.
3.3.4
In these proceedings, the debate between the parties has focused on the question of whether the State had effective control of Dutchbat's conduct. This question must be answered in order to determine whether Dutchbat's conduct in fact took place under the direction or control of the State within the meaning of Article 8 DARS.
3.3.5
It should be noted that in these proceedings, unlike in the and judgments referred to above at 2.1.1, the question of whether making Dutchbat available to the UN implies that Dutchbat's conduct can exclusively be attributed to the UN and not to the State, or that dual attribution (attribution to both the UN and the State) is possible, is not at issue. It was found in the and judgments that the latter was the case. This is why the provisions in DARIO concerning the attribution of conduct to an international organization are not directly relevant in these proceedings. (In this regard, see the and judgments, para. 3.9.1 et seq.)
(i) effective control

3.4.1
In the commentary to Article 8 DARS, the following is noted at (3) regarding the requirement “under the direction or control”:
“More complex issues arise in determining whether conduct was carried out “under the direction or control” of a State. Such conduct will be attributable to the State only if it directed or controlled the specific operation and the conduct complained of was an integral part of that operation. The principle does not extend to conduct which was only incidentally or peripherally associated with an operation and which escaped from the State’s direction or control.”

3.4.2
Subsequently, the Commentary to Article 8 DARS at (4) discusses the extent of direction or control that the State must exercise in order to attribute conduct to it. In this regard, the effective control standard is mentioned, which is derived from a judgment of the International Court of Justice of 27 June 1986 in the case :
“The degree of control which must be exercised by the State in order for the conduct to be attributable to it was a key issue in the case. The question was whether the conduct of the contras was attributable to the United States so as to hold the latter generally responsible for breaches of international humanitarian law committed by the contras. This was analysed by ICJ in terms of the notion of “control”. On the one hand, it held that the United States was responsible for the