EHRM, 11-06-2013, nr. 65542/12

On 30 November 1998 the General Assembly of the United Nations adopted a resolution (A/RES/53/35) in which, among other things, it requested the Secretary General to provide a comprehensive report, including an assessment, on the events dating from the establishment of the safe area of Srebrenica on 16 April 1993 under Security Council resolution 819 (1993) of 16 April 1993, which was followed by the establishment of other safe areas, until the endorsement of the Dayton Peace Agreement by the Security Council on 15 December 1995.

The Secretary General's report was distributed to the General Assembly on 15 November 1999. The report runs to 113 pages not including its annexes.

The report summarises the various peace-making efforts (including by a ‘Contact Group’ composed of representatives of France, Germany, the Russian Federation, the United Kingdom and the United States) and decision-making procedures in the United Nations Security Council, UNPF and UNPROFOR, as well as the attack and the taking of Srebrenica by the VRS and the massacre that followed.

The following is taken from the final section of the report, entitled ‘XI. The fall of Srebrenica: an assessment’:

and

In November 1996 the Netherlands Government commissioned the State Institute for War Documentation (Rijksinstituut voor Oorlogsdocumentatie, ‘RIOD’) to investigate ‘the events before, during and after the fall of Srebrenica’. The purpose was that the materials thus collated should provide ‘insight into the causes and events that had led to the fall of Srebrenica and the dramatic events that followed’.

The report was presented on 10 April 2002 by RIOD's successor institution, the NIOD Institute for War, Holocaust and Genocide Studies (NIOD Instituut voor Oorlogs-, Holocaust- en Genocidestudies, a body born of a merger between the Netherlands Institute for War Documentation (Nederlands Instituut voor Oorlogsdocumentatie) and the Center for Holocaust and Genocide Studies (Centrum voor Holocaust- en Genocide Studies). In the original Dutch it runs to 3,172 pages not including appendices. An English-language version (entitled Srebrenica: Reconstruction, background, consequences and analyses of the fall of a ‘safe’ area) exists. It is intended to be a historical account, not to offer political conclusions or judgments.

The report traces the history of the former Yugoslavia from the Middle Ages through the Second World War up to the Socialist era, in increasing detail, setting out the perspective of the various ethnic groups (Bosniacs, Croats and Serbs in particular). It continues with the declarations of independence by Croatia, Slovenia and Bosnia and Herzegovina, the international political events following the outbreak of hostilities, and the political decision-making that led to the participation of the Netherlands in UNPROFOR and the decision to deploy Dutchbat in the Srebrenica enclave. Events in the Srebrenica area itself following the arrival of Dutchbat, including hostile action by the ARBH and the VRS, are described in detail.

In an epilogue, the report notes that the denial of effective close air support to Dutchbat owed much to the Bosnian Serb response to an air attack carried out in May 1995 on VRS ammunition dumps in Pale, then the Bosnian Serb capital; this had involved taking UNPROFOR personnel hostage and the destruction of an American fighter aircraft by VRS air defences in June 1995. There had also been a failure on the part of governments in possession of intelligence to share it with others. This went a long way towards explaining the turn events had taken. The Dutchbat leadership had been concerned to ensure the well-being of the civilians entrusted to their care; for this they had been dependent on the VRS, and therefore vulnerable to Bosnian Serb manipulation. Finally, the widespread public perception of the Dutchbat operation as a national failure had turned the fall of Srebrenica and its aftermath into a political issue.

These findings induced the incumbent Government to take political responsibility. On 16 April 2002 it announced its resignation.

France having been a major troop contributor to UNPROFOR as well as being a permanent member of the Security Council of the United Nations, the French National Assembly (Assemblée nationale) decided on a parliamentary enquiry. The report (Eleventh Parliament under the Constitution of 1958 — Onzième législature — no. 3413) was registered by the chairmanship of the National Assembly on 22 November 2001.

The report charts the political and military developments leading to the creation of the ‘safe areas’ in Eastern Bosnia and the VRS attack on Srebrenica.

The massacre is described, but the report stops short of imputing personal responsibility to individuals, preferring to leave that to the criminal tribunals.

The Government's resignation led to a debate in the Lower House of Parliament (Tweede Kamer der Staten-Generaal), which decided to hold a parliamentary enquiry (parlementaire enquête) in order to establish individual political, military and official responsibility.

The report (Lower House of Parliament, parliamentary year 2002–2003, 28 506, nos. 2–3) was presented on 27 January 2003. It runs to 463 pages, mostly taken up by summaries and excerpts of evidence taken from participants in the various decision-making processes, both domestic and foreign.

The report finds that the decision to participate in the international intervention in the former Yugoslavia was inspired partly by humanitarian motives and partly by the desire, felt by both the Government and Parliament, for the Netherlands to play an active role in promoting international peace and security. However, the decision to deploy a lightly-armed air-mobile infantry battalion to an embattled ‘safe area’ had been inspired by wishful thinking rather than by considerations of feasibility.

Over time self-defence had taken on a greater importance than the fulfilment of UNPROFOR's mandate and UNPROFOR's power to deter by its presence had been eroded. The United Nations were primarily to blame for this.

The Bosnian Serb side alone was to blame for the crimes committed. However, although fault was found with the Dutchbat leadership and the Netherlands government, it was ultimately unlikely that Dutchbat could have prevented the massacre.

A ‘Commission for Investigation of the Events in and around Srebrenica between 10^th and 19^th July 1995’ was established by a decision of the Republika Srpska Government on 15 December 2003. The Commission's remit was to meet the Republika Srpska's obligations, flowing from the Human Rights Chamber's Selimović and Others decision (see paragraphs 47 and 48 below), to make its own investigations into the fate of the victims named in the applications lodged with the Human Rights Chamber.

The commission's report, which was published on 11 June 2004, runs to 45 pages not including appendices. It establishes that

In addition, it established the responsibility of organs of the Republika Srpska in the matter. A database of the known victims was set up and the whereabouts of various mass graves were disclosed.

On 10 November 2004 the Republika Srpska government issued a statement apologising for the crimes committed.

Several individuals have been charged before the International Criminal Tribunal for the Former Yugoslavia (ICTY) in connection with the Srebrenica massacre, among them Major General Radislav Krstić who shortly after the fall of Srebrenica became commander of the VRS's Drina Corps. On 2 August 2001 ICTY's Trial Chamber delivered a 260-page judgment (IT-98-33-T) finding him guilty of genocide, persecutions and murder and sentencing him to forty-six years' imprisonment.

The Trial Chamber's judgment itself gives a detailed description of the events surrounding the fall of Srebrenica to the VRS and the massacre that followed.

Major General Krstić appealed against his conviction and sentence. He did not challenge the Trial Chamber's description of events, focusing instead on the nature and extent of his criminal responsibility. Ultimately the Appeals Chamber found that, absent proof of genocidal intent, Major General Krstić had not been a principal perpetrator of the crimes committed. It did, however, find him guilty of aiding and abetting genocide and crimes against humanity and reduced his sentence to thirty-five years (judgment of 19 April 2004, IT-98-33-A).

The Human Rights Chamber for Bosnia and Herzegovina was a domestic human rights court set up under the Human Rights Agreement set out in Annex 6 to the Dayton Peace Agreement. It had fourteen judges, called ‘Members’, six of whom were nationals of Bosnia and Herzegovina (two Bosniacs, two Croats, two Serbs), the remaining eight being nationals neither of Bosnia and Herzegovina nor of any neighbouring state. It existed until the end of 2003.

On 7 March 2003 the Human Rights Chamber gave a decision on forty-nine applications (the Selimović and Others decision). These applications were taken from among some 1,800 similar applications brought before the Human Rights Chamber, all related to the Srebrenica events.

The Human Rights Chamber held that it lacked jurisdiction ratione temporis to consider the events occurring before the entry into force of the Human Rights Agreement on 14 December 1995. It did, however, find violations of Articles 3 and 8 of the Convention both taken alone and in conjunction with Article 14 of the Convention as regards the failure to provide information to the applicants about their missing relatives and to conduct any meaningful investigation. It added that ‘[i]n the context of the Srebrenica cases, these violations [were] particularly egregious since this event [had] resulted in the largest and most horrific mass execution of civilians in Europe in the second half of the twentieth century. ….’. It ordered the Republika Srpska to disclose all relevant information in its possession, to release any missing captives still alive, and to conduct a ‘full, meaningful, thorough, and detailed investigation’. In addition, it ordered the Republika Srpska to pay a total of four million Bosnia and Herzegovina convertible marks (BAM) to the Foundation of the Srebrenica-Potočari Memorial and Cemetery.

On 20 March 1993 the then Republic of Bosnia and Herzegovina initiated proceedings in the International Court of Justice (ICJ) against the then Federal Republic of Yugoslavia alleging, as relevant to the case before the Court, violations of the Convention on the Prevention and Punishment of the Crime of Genocide. After the entry into force of the Dayton Peace Agreement, the Republic of Bosnia and Herzegovina was succeeded as applicant party by Bosnia and Herzegovina. The Federal Republic of Yugoslavia, after its dissolution, was replaced as respondent party first by Serbia and Montenegro and finally by Serbia, albeit that any responsibility for past events determined by the ICJ involved at the relevant time the State of Serbia and Montenegro.

The ICJ gave judgment on 26 February 2007 (Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), Judgment, I.C.J. Reports 2007, p. 43). As regards the Srebrenica massacre, it based its findings of fact on those of ICTY in the above-mentioned judgment of the Trial Chamber in the Krstić case, on ICTY's judgment in the Blagojević case (IT-02-60-T, Trial Chamber Judgment, 17 January 2005), and on the report of the Secretary-General of the United Nations (see paragraph 25 above).

The ICJ held, inter alia, that acts of genocide had been committed by members of the VRS in and around Srebrenica from about 13 July 1995 (loc. cit., §§ 291 and 297). However, the decision to commit these acts had been made by individual members of the leadership of the VRS; there was nothing to prove that they had been planned, or committed, by persons for whom the respondent was responsible, or with the knowing complicity of the respondent. The massacre could therefore not be imputed to Serbia and Montenegro (loc. cit., §§ 413–415; §§ 423–424).

It held, nonetheless, that an obligation to prevent genocide existed, albeit a qualified one. The obligation in question was one of conduct and not one of result, in the sense that a State could not be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties was rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State did not incur responsibility simply because the desired result was not achieved; responsibility was however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide.

It went on to find that the authorities of the FRY, and above all its president, Mr Slobodan Milošević, had been aware of the tensions reigning in the Srebrenica area between the various ethnic groups and thus of the danger that genocide might occur. Although undeniably possessing influence over the VRS by dint of ‘political, military and financial links’ with it (loc. cit., § 435), they had not brought their influence to bear on the VRS to prevent the genocide from occurring. The international responsibility of Serbia was thereby engaged (loc. cit., § 438).

The United Nations did not appear before the Regional Court, as it had previously indicated to the Permanent Representative of the Kingdom of the Netherlands in New York that it would not.

The Netherlands State, already a defendant in its own right, also asked to intervene on its behalf of the United Nations, or in the alternative join the proceedings against the United Nations as a defendant. It submitted that in the light of Article 105 § 1 of the Charter of the United Nations taken together with Article II, section 2 of the Convention on the Privileges and Immunities of the United Nations the Netherlands courts lacked competence in so far as the proceedings were directed against the United Nations; it was for the Netherlands courts to recognise the immunity of the United Nations ex officio unless it was explicitly waived. The State had an international legal interest of its own in invoking this immunity, as was reflected particularly in section 3a of the Bailiffs Act 2001.

The applicants argued that the immunity of the United Nations was overridden by, in particular, Article 6 of the Convention and the prohibition of genocide, the latter being a rule of ius cogens that had found its way into treaty law (in the form of the Convention on the Prevention and Punishment of the Crime of Genocide).

The main proceedings were adjourned pending a final decision in the incident of procedure.

The Regional Court gave judgment on 10 July 2008, Landelijk Jurisprudentie Nummer (National Jurisprudence Number, ‘LJN’) BD6795, English translation LJN BD6796. As relevant to the case before the Court, it found that the failure by the Minister of Justice to make a declaration as provided for by section 3a of the Bailiffs Act 2001 did not imply recognition of the jurisdiction of the Netherlands courts by the Netherlands State.

Conversely, the State had an interest of its own in defending the United Nations' immunity from jurisdiction in view of its obligations under Article 105 § 1 of the Charter of the United Nations. It then noted that the United Nations had indicated its desire to see its immunity respected, as it invariably did, and found that the immunity of the United Nations was in fact recognised in international legal practice.

Neither the Convention on the Prevention and Punishment of the Crime of Genocide nor any other rule of international law, whether defined by treaty, by customary law or by State practice, obliged the Netherlands to enforce the prohibition of genocide through its civil law; the Convention on the Prevention and Punishment of the Crime of Genocide provided only that States should ensure that genocide was punished.

Referring to the case-law of this Court (Al-Adsani v. the United Kingdom [GC], no. 35763/97, ECHR 2001-XI), the Regional Court found that in principle sovereign immunity of a State was not overridden by the prohibition of torture laid down in Article 3 of the Convention. The prohibition of torture being as much a rule of ius cogens as the prohibition of genocide, it could be concluded that, in the current state of international law, immunity from civil suit in a domestic court — whether enjoyed by a sovereign State or by an international organisation — was not overridden by ius cogens.

It followed that the United Nations' immunity was not functional, to be weighed in the balance by domestic courts, but absolute.

As to Article 6 of the Convention, the Regional Court pointed to the decision of this Court in Behrami and Behrami v. France and Saramati v. France, Germany and Norway ((dec.) [GC], nos. 71412/01 and 78166/01, 2 May 2007). It had been held in that decision that troop-contributing nations could not be held to account for the actions of forces placed at the disposal of the United Nations for international peacekeeping operations. From this it followed that Article 6 could not be invoked in support of an exception to the immunity from suit of the United Nations itself.

The Regional Court was aware that the Court had, in Waite and Kennedy v. Germany [GC], no. 26083/94, ECHR 1999-I, and Beer and Regan v. Germany [GC], no. 28934/95, 18 February 1999, made statements suggesting that the immunity of an international organisation was compatible with Article 6 of the Convention only if the organisation itself offered a reasonable alternative for the protection of Convention rights. However, the creation of the United Nations pre-dated the entry into force of the Convention. Moreover, the United Nations was an organisation whose membership was well-nigh universal; this distinguished it from organisations such as the European Space Agency, the organisation in issue in Waite and Kennedy and Beer and Regan, which had been created only in 1980 and whose membership was limited to European States. Moreover, the Court itself had recognised the special position of the United Nations in Behrami and Behrami v. France and Saramati v. France, Germany and Norway. At all events, if any State were to exercise jurisdiction over the United Nations, that State should be the one within whose territory the organisation had its seat or the acts complained of had taken place; in the present case, that excluded the Netherlands.

The Regional Court thus declined jurisdiction as regards the United Nations without finding it necessary to rule on the request by the Netherlands State for permission to intervene or join the proceedings.

The applicants appealed to the Court of Appeal (gerechtshof) of The Hague. Their principal arguments may be summarised as follows.

As relevant to the case before the Court, they argued that the State's reliance on the absolute immunity of the United Nations went hand in hand with its argument that the United Nations alone bore responsibility for the failure to prevent the act of genocide constituted by the Srebrenica massacre. To accept that argument would be to deny access to a court to the surviving kin of the victims of the massacre, which was legally, humanly and morally wrong. The Regional Court had overlooked the nature of the State's argument, which was based not so much on its need to meet its obligations under international law as on its own self-interest, clearly understood (welbegrepen eigenbelang). It was not the purpose of the international legal obligation to allow the State to evade its own responsibility.

The United Nations had been required by Article VIII, section 29 of the Convention on the Privileges and Immunities of the United Nations to institute some form of settlement mechanism for disputes of a private nature to which it was a party, but in the more than sixty years of its existence it had failed to do so. There was therefore an urgent need for the Netherlands domestic courts to assume jurisdiction.

The Al-Adsani judgment of this Court was not appropriate precedent, since the immunity of an international organisation was different from the immunity of a sovereign State. Moreover, in Al-Adsani the Court had been deeply divided. The majority position in Al-Adsani had been criticised in that it had allowed sovereign immunity to trump a rule of ius cogens, namely the prohibition of torture. It was all the more inappropriate to allow the functional immunity of an international organisation to override an even more fundamental rule of ius cogens, namely the prohibition of genocide.

In the Kadi and Al-Barakaat cases, both the Advocate General to the the Court of Justice of the European Communities and the Court of Justice itself had demonstrated a willingness to step in and provide access to a court where the United Nations itself had failed to do so (Joined Cases C-402/05 P and C-415/05 P, Yassin Abdullah Kadi and Al Barakaat International Foundation v. Council of the European Union and Commission of the European Communities, judgment of 3 September 2008).

The Court of Appeal gave judgment on 30 March 2010, LJN BL8979. It allowed the State to join the proceedings against the United Nations as a defendant and went on to confirm the judgment of the Regional Court for the remainder.

It did not accept that the State was trying to evade its own liability in civil law by invoking the immunity of the United Nations. This being an incident of procedure concerning the competence of the Netherlands domestic courts in relation to the United Nations, it could not anticipate the defence which the Netherlands State would put forward as a defendant in its own right in future proceedings on the merits.

Referring to Article II, section 2 of the Convention on the Privileges and Immunities of the United Nations, which should be interpreted ‘in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose’ (Article 31 of the Vienna Convention of the Law of Treaties) and also in the light of Article 105 of the Charter of the United Nations, the Court of Appeal found that no other construction could be placed on that provision than that ‘the most far-reaching immunity [had] been granted to the United Nations, in the sense that the United Nations [could] not be summoned before any domestic court of the countries that [were] party to that Convention’. It did not follow from the wording of Article 105 of the Charter that the immunity of the United Nations was merely functional, it being obvious from the Articles of the Charter preceding Article 105 that the Convention on the Privileges and Immunities of the United Nations (including its Article II, section 2) was intended to specify the ‘privileges and immunities … necessary for the fulfilment of [the United Nations'] purposes'.

Unlike the Regional Court, the Court of Appeal was not convinced that the Court had deviated from Waite and Kennedy and Beer and Regan in its decision in Behrami v. France and Saramati v. France, Germany and Norway. The latter case had concerned neither the United Nations as a prospective party nor access to the domestic courts within the meaning of Article 6 of the Convention. Nor could it make any difference that the United Nations had been set up before the Convention entered into force; such a finding would be incompatible with the fundamental nature of Convention rights. Nor yet could it be assumed that Article 103 of the Charter of the United Nations had been intended simply to set aside customary international law or international treaties, still less to impair the protection of international human rights standards, it being precisely one of the purposes of the United Nations to promote respect for human rights and fundamental rights. This meant that the criteria by which the immunity from jurisdiction enjoyed by the United Nations were to be judged were those set out by the Court in § 53 of Beer and Regan.

The Court of Appeal's judgment continued as follows:

The Supreme Court gave judgment on 13 April 2012, LJN BW1999. Its reasoning included the following:

In August 2003 an organisation called Udruženje Građana ‘Žene Srebrenice' (Citizens' Association ‘Women of Srebrenica’), an association based in Tuzla, Bosnia and Herzegovina, requested the Regional Court of The Hague to order a preliminary hearing of witnesses (voorlopig getuigenverhoor) with a view to bringing civil proceedings in tort against the Netherlands State.

On 27 November 2003 the Regional Court gave a decision (LJN AN8978) refusing that request. It took the view that, in the absence of relevant established case-law, it was necessary first to settle the question of principle whether, and in what cases, the State could be held liable for the actions of a military contingent operating under the command and control of the United Nations as Dutchbat had been. Such a decision could not properly be taken in proceedings for the preliminary hearing of witnesses; it required proceedings on the merits. In any case, the documentation available, which was very extensive and included the report of the NIOD Institute for War, Holocaust and Genocide Studies and the report of the Netherlands parliamentary enquiry, ought to be sufficient for the association to assess its chances of success, the more so since many of the witnesses whom the association wanted to hear had already been heard in the course of those two investigations.

Two civil cases have been brought in the Netherlands courts against the Netherlands State by surviving relatives of men killed in the Srebrenica massacre.

The plaintiffs in the first case (Mustafić v. the State of the Netherlands) are surviving kin of an electrician who was a de facto employee of Dutchbat but did not enjoy any status conferred to persons employed by the United Nations directly. They allege that on 13 July 1995 the Netherlands State committed a breach of contract in that the Dutchbat deputy commander had refused to let him stay with his family in the compound at Potočari, as a result of which he was made to leave the compound that same day, whereas the Dutchbat leadership ought to have protected him by keeping him inside and evacuating him with Dutchbat itself. In the alternative, they allege a tort. The plaintiff in the second case (Nuhanović v. the State of the Netherlands) was himself a de facto employee of Dutchbat, for which he worked as an interpreter but also without the status of United Nations employee; he is the son of one man killed in the massacre and the brother of another. He alleges a tort in that the Dutchbat deputy commander turned the two men out of the compound in the afternoon of 13 July 1995.

The two cases were considered in parallel, first by the Regional Court of The Hague, then by the Court of Appeal of The Hague.

At first instance, the Regional Court held that the matters complained of were imputable to the United Nations alone. Dutchbat had been under United Nations command and control; the events complained of had taken place in Bosnia and Herzegovina, a sovereign state over which neither the United Nations nor the Netherlands had jurisdiction.

The Mustafić family and Mr Nuhanović appealed to the Court of Appeal of The Hague.

The Court of Appeal delivered two interlocutory judgments on 5 July 2011, LJN BR0132 (Mustafić) and LJN BR0133 (Nuhanović), which in their relevant parts are identical. It ordered the hearing of witnesses on a point of procedure not relevant to the case before the Court.

In two essentially identical judgments on the merits delivered on 26 June 2012, LJN BW9014 (Mustafić) and LJN BW9015 (Nuhanović) respectively, the Court of Appeal overturned the judgments of the Regional Court and held the Netherlands State liable in tort for the damage caused to the appellants as a result of the deaths of their relatives.

The State has brought appeals on points of law against these judgments before the Supreme Court. In his advisory opinion to the Supreme Court, presented on 3 May 2013, the Advocate General (advocaat-generaal) proposes that the Supreme Court dismiss them (LJN BZ9228, CPG 12/03329).

The applicants complained that the recognition of the immunity from domestic jurisdiction of the United Nations by the Netherlands courts violated their right of access to a court.

Article 105 of the Charter of the United Nations by its very wording created for the United Nations an immunity that was functional in character, not absolute. That immunity was justified by, and limited by, the necessity for the organisation to carry out its tasks in independence. Accordingly, whenever the United Nations invoked its immunity, the courts had to determine whether a functional need for such immunity existed.

The immunity from jurisdiction of international organisations was different from the immunity enjoyed by States. Whereas the immunity from jurisdiction of foreign States was based on sovereign equality, as per the maxim ‘par in parem non habet imperium’, the right of access to a court was not thereby extinguished: it remained possible to institute proceedings against foreign States in their own courts.

Article II, section 2 of the Convention on the Privileges and Immunities of the United Nations made explicit provision for waiving the United Nations' immunity. Moreover, the ICJ, in paragraph 61 of its Advisory Opinion on a Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, had made it clear that the immunity of a United Nations official (in that case a special rapporteur on human rights) was presumed, and had to be given ‘the greatest possible weight’ by domestic courts, but could nonetheless be set aside ‘for the most compelling reasons’.

Article VIII, section 29 of the Convention on the Privileges and Immunities of the United Nations required the United Nations to make provisions for appropriate modes of settlement of disputes with it. This showed that there was a perceived need to avoid situations in which the immunity of the United Nations would give rise to a de facto denial of justice.

The importance of the availability of an alternative judicial remedy was also borne out by the Court's own case-law in the matter of international organisations' immunity from domestic jurisdiction, in particular Waite and Kennedy v. Germany, cited above.

As to the particular case, in 1999 the then Secretary General of the United Nations had recognised that errors of judgement and fundamental mistakes had been made. He had concluded that ‘the international community as a whole’, including ‘the Security Council, the Contact Group and other Governments which [had] contributed to the delay in the use of force in the early stages of the war, as well as … the United Nations Secretariat and the mission in the field’ bore responsibility for these.

The massacre at Srebrenica had been an act of genocide, as had been found by both ICTY (in the Krstić case) and the ICJ (in Bosnia and Herzegovina v. Serbia and Montenegro). The Bosnia and Herzegovina v. Serbia and Montenegro judgment was especially important in that it formulated the obligation to prevent genocide: States were to take, to that end, all measures within their power, they could not evade their international responsibility by claiming, or even proving, that the means at their disposal would in any case have been insufficient, given that the combined efforts of several States might have sufficed to avert genocide.

The current Secretary General of the United Nations, in response to the applicants' summons in the present case, had stated that the survivors of the Srebrenica massacre were ‘absolutely right’ to demand justice for ‘the most heinous crimes committed on European soil since World War II’ and had expressed his support for that demand. Likewise, in an address to the United Nations General Assembly on 8 October 2009 the then President of ICTY had criticised the failure of the international community to create effective legal remedies accessible to the victims of the conflicts that had occurred in the former Yugoslavia.

The Supreme Court had been wrong to construe Waite and Kennedy so as to differentiate between the United Nations and other international organisations. No such distinction was made by the Court itself in Waite and Kennedy. Furthermore, in its comments on the International Law Commission's Draft articles on the responsibility of international organizations the Secretariat of the United Nations itself had recognised differences between states and international organisations on the one hand and international organisations among themselves on the other, but had nonetheless made it clear that it considered the United Nations an international organisation within the meaning of those Draft articles. Nor was such a distinction made by the Institute of International Law, for example in its Resolution on the Legal Consequences for Member States of the Non-Fulfilment by International Organizations of their Obligations towards Third Parties, nor yet by the International Law Association, which defined its scope of work broadly as encompassing international organisations ‘in the traditional sense’ without differentiating the United Nations.

The Supreme Court had been wrong to draw from the Court's decision in Behrami and Behrami v. France and Saramati v. France, Germany and Norway the conclusion that the United Nations enjoyed absolute immunity from domestic jurisdiction. The Court's decision had been entirely unrelated to immunity from domestic jurisdiction: the Court had in fact held that it lacked competence ratione personae over the United Nations.

The effect of the Supreme Court's judgment was to deprive the applicants of ‘access to a court’ entirely. No alternative to domestic courts existed for them to assert their rights against the United Nations. The absence of such a jurisdictional alternative had been found by the Court to be incompatible in principle with Article 6 of the Convention in judgments including Waite and Kennedy, and (in relation to the sovereign immunity of foreign States) Fogarty v. the United Kingdom [GC], no. 37112/97, ECHR 2001-XI (extracts); Cudak v. Lithuania [GC], no. 15869/02, ECHR 2010; Sabeh El Leil v. France [GC], no. 34869/05, 29 June 2011; and Wallishauser v. Austria, no. 156/04, 17 July 2012.

The Supreme Court had failed to take into account Section II, paragraph 29 of the Convention on the Privileges and Immunities of the United Nations, which required the United Nations to set up some system for the settlements of disputes to which it was a party. The Supreme Court had thereby arrived at a result that was ‘manifestly absurd or unreasonable’ within the meaning of Article 32 of the Vienna Convention on the Law of Treaties. Rather, domestic courts, and the Court itself, had to bear in mind the special character of the European Convention on Human Rights as a human rights treaty as well as recommendations made by international bodies such as the International Law Commission and the International Law Association.

Finally, the Supreme Court had failed to balance the interests involved against each other. Whatever the interest served by the United Nations' immunity from domestic jurisdiction, absolute immunity was not acceptable if no alternative form of dispute resolution was available. Faced with the failure of the Secretary General of the United Nations to waive that organisation's immunity, the Netherlands courts ought to have found that there were nonetheless compelling reasons to examine the applicants' claims.