Hof 's-Gravenhage, 05-07-2011, nr. 200.020.174/01 (Engelse vertaling)

Introduction

In its contested judgment the District Court established a number of facts under 2.1 - 2.19. In ground 1, Nuhanovic brings forward that in so far as the District Court did not or did not completely establish the facts as argued in the statement of appeal and in the first instance by Nuhanovic and did not make them serve as the basis for its judgment, he considers this was done wrongly. In addition to this general grievance Nuhanovic addresses some more specific grievances against the considerations of the District Court in which it allegedly represented the facts incorrectly or incompletely.

The general grievance at the start of ground 1 does not fulfil the requirement that the opposing party and the Court should be able to conclude with sufficient accuracy which part of the judgment Nuhanovic does not agree with and why. As to the more specific grievances that were brought forward within the scope of this ground, in so far as necessary for its judgment, the Court will get back to them when evaluating the other grounds for appeal. In addition the Court observes that the District Court was not obliged to represent the facts exhaustively in its judgment in so far as this was not deemed necessary for an adequate substantiation of its judgment.

The Court proceeds on the assumption that the following facts, which have been argued and have not or not sufficiently been contested or that resulted from the exhibits which were not contradicted, have been established between the parties. In chronological order these facts will be mentioned below.

The facts

In 1991, the Republics of Slovenia and Croatia declared their independence from the Socialist Federal Republic of Yugoslavia. As a result from the fighting that started especially in Croatia, the Security Council of the United Nations decided to set up the United Nations Protection Force (hereinafter: UNPROFOR), with its headquarters in Sarajevo.

On 3 March 1992, the Republic of Bosnia and Herzegovina also declared its independence from the Socialist Federal Republic of Yugoslavia. Population groups of Muslims and Serbs were both living in Bosnia and Herzegovina. After the Bosnian Serbs had declared their independence from the Republika Srpska (Serb Republic), fighting started among others between the army of Bosnia and Herzegovina on the one hand and the Bosnian-Serb army on the other. In relation to these fights the Security Council increased the presence of UNPROFOR and extended its mandate to Bosnia and Herzegovina by Resolution 758 of 8 June 1992.

Srebrenica is a city situated in eastern Bosnia and Herzegovina. Due to the continuing armed conflict, a Muslim enclave came into existence in Srebrenica and its surroundings. From the beginning of 1993, the Srebrenica enclave was surrounded by the Bosnian Serb Army.

On 16 April 1993, the UN Security Council adopted Resolution 819, that among other matters included the following:

Pursuant to Resolution 824 of the Security Council of 6 May 1993, the number of safe areas was increased.

On 15 May 1993, the UN and Bosnia and Herzegovina signed the Agreement on the status of the United Nations Protection Force in Bosnia and Herzegovina (hereinafter: SOFA). Art. 6 of the SOFA stipulated that "the Government [Court: of Bosnia and Herzegovina] undertakes to respect the exclusively international nature of UNPROFOR."

In Resolution 836 of 4 June 1993, the UN Security Council decided among other matters:

In his report dated 14 June 1993, the UN Secretary-General provided an analysis of the options for the implementation of Resolution 836. The report includes the following:

In Resolution 844 of 18 June1993, the Security Council decided to strengthen UNPROFOR according to the recommendation of the Secretary-General in his report of 14 June 1993 under 6.

On 3 September 1993, the Dutch Permanent Representative to the United Nations offered a battalion of the Airborne Brigade to the Military Adviser of the UN Secretary-General mainly for the implementation of Resolution 836 regarding the safe areas. That proposal was repeated to the Secretary-General by Defense Minister Ter Beek on 7 September 1993. The Secretary-General accepted this proposal on 21 October 1993.

On 3 March 1994, the Dutch battalion of the Airborne Brigade ('Dutchbat') relieved the Canadian detachment that was present in Srebrenica. The main force of Dutchbat was stationed in the Srebrenica enclave. One infantry company was quartered in the city of Srebrenica, the other units were quartered outside of the city at an abandoned industrial premises in Potocári (the 'compound').

In the period that is relevant for this case, the following persons held the positions outlined below.

The (French) Lieutenant General Janvier was Force Commander of UNPF, since 1 April 1995 the new name of the original UNPROFOR. The UNPF-headquarters were located in Zagreb, Croatia.

The (British) Lieutenant General Smith was Commander of BH Command, since May 1995 named HQ UNPROFOR. Deputy Commander of HQ UNPROFOR was the (French) General Gobillard. The (Dutch) Brigade General Nicolai was Chief of Staff of HQ UNPROFOR. His Military Assistant was the (Dutch) Lieutenant Colonel De Ruiter. HQ UNPROFOR was situated in Sarajevo, Bosnia and Herzegovina.

Three regional headquarters resorted under HQ UNPROFOR, including the North East Sector in Tuzla. The (Norwegian) Brigade General Haukland was in charge of North East Command. The (Dutch) Colonel Brantz was Chief of Staff/Deputy Commander of North East Command. The North East Sector included Tuzla, Zepa and Srebrenica.

Commander of Dutchbat was Lieutenant Colonel ('overste') Karremans. Major Franken was Deputy Commander.

Dutchbat was bound by the rules of conduct and instructions set out by the UN: the Rules of Engagement (drawn up by the Force Commander), the Standing Operating Procedures and the Policy Directives. The Ministry of Defense laid down these rules of conduct and instructions, as well as a number of existing rules set out especially for this mission, in the (Dutch) Standing Order 1 (NL) UN Infbat. This Standing Order includes the instruction that after the provision of aid no persons may be sent away if this results in physical threat.

On 5 and 6 July 1995, the Bosnian Serb Army under the command of General Mladic started an attack on the Srebrenica enclave. On 11 July 1995, Srebrenica was taken by force of arms by the BSA forces. The Dutchbat troops who were still in town withdrew into the compound in Potocari. Subsequently a stream of refugees started leaving the city of Srebrenica.

More than 5000 of these refugees were admitted into the compound by Dutchbat, including 239 able-bodied men (in other words between the ages of 16 and 60). The refugees within the compound were accommodated in an abandoned factory hall. A far larger number of refugees (probably around 27.000) had to stay in Potocari outside the compound in open air.

On 11 July 1995, at the end of the afternoon Defense Minister Voorhoeve telephoned General Nicolai. Nicolai told Voorhoeve that they did not see any other solution in Sarajevo than to evacuate the refugees. Voorhoeve agreed to that.

On the same day at 18.45 hours, Karremans received a fax from General Gobillard, with the following instructions:

In the evening of 11 July 1995, General Janvier received the Dutch Defense Chief of Staff Van den Breemen and Deputy Commander of the Royal Netherlands Army Van Baal, who had travelled from the Netherlands to Zagreb in order to hold consultations on the situation that had arisen in Srebrenica. The persons who took part in that meeting agreed that both Dutchbat and the refugees needed to be evacuated, whereby first of all the UNHCR would be responsible for the evacuation of the refugees.

In the evening of 11 July 1995, Karremans held two meetings with Mladic, the second time he was accompanied by Nesib Mandžic as representative of the local population. During the first meeting Mladic said that the Muslim civilian population was not the target of his action, but actually that he wanted to offer them help. He asked Karremans if he could request Nicolai to send busses and Karremans replied that he thought that he could arrange for that.

According to the script of the video recordings that were made of the first of these talks between Karremans and Mladic, among other things Karremans said the following:

In the early morning of 12 July 1995, Karremans spoke on the telephone to Voorhoeve. Voorhoeve said to Karremans: "save as much as possible".

In the morning of 12 July 1995, Karremans held a third and final meeting with Mladic, whereby this time Karremans was not only accompanied by Mandžic but also by Ibro Nuhanovic and Camila Omanovic. During this meeting Mladic said that he could arrange for vehicles himself. He also mentioned the order in which the refugees were to be evacuated: first the wounded, than the weaker persons, next the stronger women, children and elderly and finally the men between the ages of 17 and 70. The men would first be screened by the Bosnian Serbs to see whether there were any war criminals among them.

During one or more of his talks with Mladic, Karremans said that he wanted to take the local staff along with Dutchbat. Mladic agreed to that. Consequently Dutchbat drew up a list of approximately 29 persons that belonged to their local staff and who would be evacuated along with the Dutch battalion.

After Minister Voorhoeve had been informed about this last meeting, Voorhoeve instructed his staff to inform UNPROFOR that under no circumstances Dutchbat was allowed to cooperate in a separate treatment of the men. According to Nicolai he also reported this last instruction to Karremans, but Karremans never confirmed this. According to Karremans this did not present any problems because there would be hardly any able-bodied men on the compound. Voorhoeve gave the same instruction to Lt. Col. De Ruiter in Sarajevo.

At the beginning of the afternoon of 12 July 1995, busses and trucks of the Bosnian Serbs started to arrive outside the compound in order to pick up the refugees. According to Mladic, who was present around that time, the refugees had nothing to fear, they would be taken to Kladanj [in the Muslim Croatian Federation, Court]. As of 14.00 hours the refugees that were staying outside the compound and that wanted to leave because of their hopeless situation (there was a 'run' on the busses) were deported by these vehicles.

On 12 July 1995, the UN Security Council adopted Resolution 1004 (1995), that included the following:

In the morning of 13 July 1995, the transport of the refugees by busses and trucks was continued. Towards the end of that morning all refugees that were staying outside the compound had been deported. Subsequently that afternoon the refugees that were staying inside the compound were also transported by the vehicles provided for by the Bosnian Serbs.

During the period in which the refugees (both from outside and inside the compound) were deported, the Dutchbat troops received signals at different points in time that the Bosnian Serbs were committing crimes against the male refugees in particular. The testimonies rendered by the persons involved are not identical in every way, but nevertheless they do provide an adequate basis for the Court to be able to conclude that before the end of the afternoon of 13 July 1995 in any case the following had been observed:

Nuhanovic was working as an interpreter for the UNMO's (United Nations Military Observers), who were seconded to UNPROFOR and formed part of Dutchbat. In that capacity he was employed by the UN. After the fall of Srebrenica, Nuhanovic's father, Ibro Nuhanovic, his mother, Nasiha Nuhanovic-Mehinagic and his minor brother Muhamed had sought refuge at the compound. Nuhanovic was in the possession of a UN-pass and had been placed on the list of locally-employed personnel that was allowed to be evacuated together with Dutchbat. His father, mother and brother were not on this list. Nuhanovic made several attempts, among others through the intermediary of UNMO Major De Haan, especially to get his brother Muhamed placed on the list. However, this was refused by Major Franken, because Muhamed did not possess a UN-pass and, as far as Franken was aware, such a pass could not be produced by Dutchbat.

After all the other refugees had left the compound and the family members of Nuhanovic had been informed that they were not allowed to stay, they made their way towards the exit of the compound around 19.30 hrs. At that time, Franken said to the father of Nuhanovic (Ibro) that he was allowed to stay, because he had been a member of the civilian committee that had held consultations with Mladic. Nuhanovic's mother and brother were not offered that opportunity. Subsequently, Ibro chose to leave the compound together with his wife and son Muhamed. All three of them were deported by the Bosnian Serbs and killed by the Bosnian Serb Army or related paramilitary groups.

On 13 July 1995, at 20.00 hrs, Karremans received a fax from Lieutenant Colonel De Ruiter ('releasing officer': Nicolai) with the subject: Guidelines for negotiations with General Mladic. This fax includes the following:

Subsequently, also on 13 July 1995, Karremans sent a fax to Mladic in which he wrote among other matters:

On 19 July 1995, General Smith signed an agreement with Mladic that included the following:

Dutchbat left the compound on 21 July 1995. The Bosnian Serbs did not submit the convoy to any inspections.

The largest part of the able-bodied men that were deported by the Bosnian Serbs was killed by them. In total the Bosnian Serb actions caused the death of probably over 7.000 men, many of them by mass executions.

The claim and the judgment of the District Court

Nuhanovic believes that the State acted wrongfully. In the first instance he argued that these wrongful acts consisted of the following elements: (i) the State (Franken) refused to place Muhamed Nuhanovic on the list of local personnel, (ii) the State sent Muhamed Nuhanovic and consequently Ibro Nuhanovic away from the compound, (iii) the State failed to intervene when Muhamed Nuhanovic and Ibro Nuhanovic were separated from their mother and wife respectively, which took place before the eyes of the Dutch battalion, and (iv) the State failed to report about the separation of men and women and the other human rights violations of which it was aware and which were the precursors of the genocide. According to Nuhanovic, the State's conduct is unlawful because it is contrary to the law of the Federal Republic of Bosnia and Herzegovina, as laid down in the 'Act on Obligations', and contrary to the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR), the International Convention on Civil and Political Rights (ICCPR), the Genocide Convention, art. 1 of the Geneva Conventions, as well as the applicable instructions for UNPROFOR.

Nuhanovic demanded in the first instance (i) to rule that the State is liable for the damages resulting from a wrongful act towards Muhamed and/or Ibro and/or Nasiha Nuhanovic and/or Nuhanovic personally, (ii) to rule that the State is liable to pay compensation to Nuhanovic for damages that he has suffered and will yet suffer and (iii) to order the State to pay the costs of the proceedings, or at least to compensate the costs.

The District Court disallowed the claims of Nuhanovic. The judgment of the District Court can be summarized as follows.

First of all, in compliance with the provision of art. 155 paragraph 2 of the Code of Civil Procedure (Rv.), and also in reaction to what had been argued on behalf of Nuhanovic in relation to this, the District Court paid attention to the question why mr. B.C. Punt, who in the proceedings of Mustafic (related to the present case) had acted as judge for the personal appearance of the parties in court, and the judges who conducted the preliminary examination of witnesses, mr. A.C.J. van Dooijeweert, and mr. B.C. Punt, did not form part of the panel that rendered the final judgment. In the opinion of the District Court the explanation for this is that mr. Van Dooijeweert, who presided over the civil law section in 2005, was appointed presiding judge of another section in 2006 and has not worked in the civil law section since. Mr. Punt did not form part of the department within the civil law section dealing with proceedings commencing with a writ of summons concerning liability of the State. This was already a fact when he was asked at the time to conduct the preliminary examinations of witnesses. Originally it was strictly for this purpose that he was approached, but later he was also asked to sit at the hearing for the personal appearance of the parties in the Mustafic case, due to understaffing of the department in question. Subsequently, in mid 2007 and in consultation with mr. Punt, it was decided that he would no longer stay involved in this case, not only because he did not form part of the department referred to above, but also because the extent of his appointment as a judge was reduced at his own request as of 1 February 2007 (upon reaching the age of 65 in January 2007), whereas the Srebrenica cases were expected to be exceptionally time-consuming. The District Court considered that this was different in relation to the hearing where the parties appeared in person in the case of Mustafic, in view of its limited purpose which was to establish whether a settlement would be possible (irrespective of the legal merits).

As to the merits of the case the District Court considered in the first place that in all his allegations Nuhanovic is concerned with the question whether the State made enough efforts to prevent the death of his family members and that when answering this question no specific significance should be attributed to the Genocide Convention, besides the ECHR and the ICCPR. The fact that a positive obligation is vested in the State to protect the right to life can already be inferred from these last two human rights conventions.

Furthermore, the District Court took the grounds that Nuhanovic did not sufficiently substantiate his claim that the Dutch authorities (consisting of military force commanders and members of the Government) acted wrongfully towards the brother and the parents of Nuhanovic or towards Nuhanovic himself, for example by giving special instructions regarding the evacuation of able-bodied men. It is true that the Dutch Government did have involvement in the fate of the population (e.g. on 12 July 1995, Minister Voorhoeve gave the instruction to Dutchbat not to cooperate in the separation of men and women), but according to the District Court this does not give evidence of wrongful manipulation.

Subsequently, the District Court assessed whether the State could be attributed liability for the conduct of Dutchbat. In its primary defense the State argued that Dutchbat's conduct must be attributed exclusively to the United Nations and therefore not (also) to the State. The District Court considered that this question had to be judged in accordance with international public law standards, because the Dutch troops in Srebrenica were charged with the implementation of an order by the UN Security Council. Only in case of mere individual behaviour by members of the troops 'off-duty' or when agreements of purely private law nature are concerned, attribution in accordance with national law should be applicable, but in the opinion of the District Court these situations did not occur.

The defense which was put forward by the State that the actions of Dutchbat must exclusively be attributed to the UN, was allowed by the District Court. The arguments that served as a basis for its judgment can be summarized as follows:

Finally, the District Court considered that it is true that the circumstances on the compound, due to the lack of food and medical facilities and with high temperatures, were hopeless at the time. Nevertheless, there are good arguments in support of the claim that the passive attitude of Dutchbat toward the separate deportation of the able-bodied men by the Bosnian Serbs on 12 and 13 July 1995, was not in conformity with the specific instruction to protect civilians and refugees as much as possible in the altered circumstances, an instruction Karremans had received from Gobillard - so from the UN structure of command - on 11 July 1995. However, the District Court considers that this is of no avail to Nuhanovic, because the acts and omissions of Dutchbat during the evacuation should be considered as those of the United Nations.

On appeal Nuhanovic increased his claim. He now demands:

Outline of the grounds for appeal

Ground 1 relates to the facts established by the District Court and has been discussed in the above. In so far as this ground presents certain facts that the Court of Appeal deems important in relation to its judgment, it will address these matters below.

In ground 2, Nuhanovic argues that the District Court's interpretation of his allegations against the State was far too limited. Therefore, the Court of Appeal will start from the grievances as phrased by Nuhanovic in the appeal proceedings and which have been summarized hereafter under 6.1.

Grounds 3 through 9 and 11 through 13 are directed against the judgment of the District Court that the conduct of Dutchbat must be attributed exclusively to the UN. The Court of Appeal will first of all discuss these grounds for appeal jointly, in so far as possible, in the section below.

In ground 10, Nuhanovic argues that the District Court was wrong in its consideration that no individual significance should be attributed to the Genocide Convention, besides the ECHR and the ICCPR; according to the appellant, the State is liable for being an accessory to genocide and also for having neglected its duty to prevent genocide.

In ground 14 Nuhanovic argues additionally that the State violated the Genocide Convention, the ECHR and the ICCPR by not instituting criminal proceedings with respect to the actions of the Dutch troops that sent Nuhanovic's brother and mother away from the compound.

Ground 15 regards the substitution of mr. Punt. Nuhanovic argues that by replacing mr. Punt, the District Court violated a legal principle that was so fundamental that one can no longer consider that the hearing of this case by the District Court constituted a fair and impartial trial.

Attribution of the conduct of Dutchbat; grounds 3-9 and 11-13

Grounds 3-9 and 11-13 put forward the question whether the acts or omissions (herinafter also: the conduct) of Dutchbat which Nuhanovic attributes to the State, should be attributed to the UN (opinion State and District Court) or to the State (opinion Nuhanovic), whereby Nuhanovic also considers the possibility that this conduct is to be attributed both to the UN and the State.

Primarily, Nuhanovic argues (ground 4) that attribution of this wrongful act should not take place in accordance with the practices of international customary law, but according to national Bosnian law. Nuhanovic therefore argues that the parties agree to the fact that the legal relationship between Nuhanovic and the State resulting from a wrongful act, is governed by the law of Bosnia and Herzegovina. According to Nuhanovic, international customary law has no direct effect under the law of Bosnia and Herzegovina. Consequently Nuhanovic believes that this means that based on the Bill on Conflicts of Law in Tort (WCOD) [Wet Conflictenrecht Onrechtmatige Daad] Bosnian law is applicable to the legal relationship between Nuhanovic and the State resulting from a wrongful act. Pursuant to the WCOD, the only law that can be applied is the national law of a state and not international (customary) law, according to Nuhanovic.

This argument fails. The question here is not whether the Dutchbat troops acted wrongfully with respect to Nuhanovic, but whether, based on an agreement concluded or not between the State and the UN (whether that agreement had indeed been concluded, at least what the contents of this agreement were, is the subject of ground 5) for the deployment of troops, the actions of these troops that are placed at the disposal of the UN should be attributed to the State, the UN or possibly to both. The question whether such an agreement between a sovereign state and an international organization like the UN (which are both legal persons under international law) had been concluded, under which terms and what consequences this had, and also the question which party was liable under civil law for the conduct of Dutchbat, should be judged according to international law. In this respect it has no importance that international law has no direct effect under the national law of Bosnia and Herzegovina.

However, even if the attribution of Dutchbat's conduct should exclusively be assessed according to national law (in this case the law of Bosnia and Herzegovina), this ground does not succeed. Also in that case the question arises which party in the given context, where a state makes troops available to the UN within the scope of an operation under chapter VII of the UN Charter, is liable under civil law for the conduct of those troops. Since no submission was made by Nuhanovic and the advice from the International Judicial Institute did not produce any evidence to the Court that the law of Bosnia and Herzegovina contains a specific rule for that situation, the Court finds it obvious and in accordance with Bosnian law that in providing an answer to the above mentioned question harmonization is sought with international law, under which the troops were placed at the disposal of the United Nations.

In connection with ground 4, the State pointed out that it pleaded in the first instance that the actions of Dutchbat in Bosnia and Herzegovina should only be judged in accordance with international law and therefore not according to any national law, and that it maintains this point of view in the appeal proceedings. The Court deems that this point of view is not correct. The actions of Dutchbat in Bosnia and Herzegovina, notwithstanding the scope of possible immunities, which in this case do not occur with regards to the State, are not released from the scope of the national law of that country and may in principle give rise to (among other matters) liability resulting from a wrongful act under Bosnian law. In its report submitted as evidence by the State (exhibit 29 State), the Advisory Committee on Questions pertaining to International Law (CAVV) [Commissie van Advies voor Volkenrechtelijke Vraagstukken] also proceeds on the assumption that such liability may arise (paragraph 2.5.2). For that matter, Nuhanovic placed the violations of international law standards at the basis of his claims as well. As will appear hereinafter, an examination according to these last standards does not lead to a substantially different judgment as opposed to an assessment only according to the law of Bosnia and Herzegovina. This means that the State does not have any interest in this argument.

In ground 5, Nuhanovic contests the opinion of the District Court that participation in a peacekeeping mission of the United Nations pursuant to chapter VII of the UN Charter implies the transfer of 'command and control' over the troops that have been placed at the disposal of the UN. According to Nuhanovic, command and control' can only be transferred by an explicit act based on an agreement and they claim that there was no such agreement in this case. No submission was made by the State, nor did they produce sufficient evidence to substantiate that such a transfer of 'command and control' had taken place. For that reason Nuhanovic concludes that the wrongful acts of Dutchbat must be attributed to the State.

The ground fails, for such an agreement is included in the facts as described in the above under 2.10. After all, this paragraph shows that on behalf of the Dutch Government a battalion of the Airborne Brigade was offered to the Military Adviser of the UN Secretary-General and afterwards to the Secretary-General himself, in particular for the implementation of Resolution 836 and that this offer was accepted by the Secretary-General. No special procedural requirements are applicable to this kind of agreement and that is not the argument put forward by Nuhanovic. From an agreement concluded in this manner, no other reasonable conclusion can be drawn than that it was the intention of the parties that the Dutch battalion would operate according to the UN command structure and would therefore, for the execution of the peacekeeping mission, be placed under the ultimate authority of the Security Council. In Resolution 743 (1992) (exhibit 13 State) of the Security Council, which provided for the creation of UNPROFOR, it was stipulated that UNPROFOR would be resorting under the 'authority' of the Security Council. This is confirmed because subsequently Dutchbat was indeed placed under UN command and operated accordingly. For that reason the Court concludes that Dutchbat was placed under the command of the United Nations. Whether this also implies that 'command and control' had been transferred to the UN, and what this actually means, can remain an open question because, as will appear hereafter, Nuhanovic is right in asserting that the decisive criterion for attribution is not who exercised 'command and control', but who actually was in possession of 'effective control'.

In ground 9, Nuhanovic argues that in relation to the criterion for the attribution of the conduct of Dutchbat to the UN or the State, the question should be who had 'effective control' and not, as assumed by the District Court, who exercised 'command and control'. This ground for appeal is correct. In international law literature, as also in the work of the ILC, the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed, depends on the question which of both parties has 'effective control' over the relevant conduct. Cf. M. Hirsch, The Responsibility of International Organizations Towards Third Parties: Some Basic Principles (1995) p. 64; F. Messineo, NILR 2009 p. 41-42; A. Sari, Human Rights Law Review 2008 p. 164; T. Dannenbaum, Harvard International Law Journal 2010 p. 140-141. This opinion has also found expression in the draft articles on the Responsibility of international organizations of the ILC, of which Article 6 reads as follows:

Although strictly speaking this provision only mentions 'effective control' in relation to attribution to the 'hiring' international organization, it is assumed that the same criterion applies to the question whether the conduct of troops should be attributed to the State who places these troops at the disposal of that other international organization.

The question whether the State had 'effective control' over the conduct of Dutchbat which Nuhanovic considers to be the basis for his claim, must be answered in view of the circumstances of the case. This does not only imply that significance should be given to the question whether that conduct constituted the execution of a specific instruction, issued by the UN or the State, but also to the question whether, if there was no such specific instruction, the UN or the State had the power to prevent the conduct concerned. Moreover, the Court adopts as a starting point that the possibility that more than one party has 'effective control' is generally accepted, which means that it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party. For this reason the Court will only examine if the State exercised 'effective control' over the alleged conduct and will not answer the question whether the UN also had 'effective control'.

When applying the 'effective control' criterion it is important to establish that it is not disputed that the state that provides the troops keeps control over the personnel matters of the assigned soldiers, who are and will remain employed by the state, as well as the power to take disciplinary action and start criminal proceedings against these soldiers. It is not disputed either that the state that provides the troops at all times preserves the power to withdraw the troops and to discontinue their participation in the mission.

Furthermore, the Court attaches importance to the fact that the context in which the alleged conduct of Dutchbat took place differs in a significant degree from the situation in which troops placed under the command of the UN normally operate, as was the issue at stake in the cases Behrami v. France, no. 71412/01 and Saramati v. France, Germany and Norway, no. 78166/01 of the ECtHR (LJN: BB 7360 and BB 3180). After 11 July 1995, the mission to protect Srebrenica had failed. Srebrenica had fallen that day and it was out of the question that Dutchbat, or UNPROFOR in any other composition, would continue or resume the mission. There is no evidence that Resolution 1004 (1995) (see the above under 2.25) resulted in any order to Dutchbat to take up their positions in and around Srebrenica again, nor did the Bosnian Serb Army comply with the Resolution's call to withdraw their troops from Srebrenica. On the contrary, in the evening of 11 July 1995, in joint consultation with Dutch Defense Chief of Staff Van den Breemen, Deputy Commander Van Baal and General Janvier it was decided that there was no sense in using any further violence; see Parliamentary Inquiry Committee Srebrenica, examinations p. 736 (letter from Van den Breemen). The only option was to evacuate Dutchbat and the refugees, and to proceed in such a way that the refugees would not remain unprotected. As Van Baal put it (record of preliminary examination p. 3):

and before the Parliamentary Inquiry Committee (examinations p. 344):

Van den Breemen wrote to the Parliamentary Inquiry Committee (examinations p. 736):

The Court can only conclude that the decision for the evacuation of Dutchbat and the refugees resulting from the consultations between Janvier, Van den Breemen and Van Baal was actually taken by mutual agreement between Janvier on behalf of the UN on the one hand and by Van den Breemen and Van Baal on behalf of the Dutch Government on the other. In the opinion of the Court it is not plausible that two of the highest ranking Dutch military officers had only travelled to Zagreb to be informed about what General Janvier, after being told about their wishes, would decide regarding the evacuation. The Court interprets the background of the consultations of that evening in such a manner that, considering the concerns that existed in The Hague for the safety of both Dutchbat and the refugees, in practice they could only take a decision on the evacuation that not only The Hague but also (the Force Commander of) the UN would approve of. The fact that Gobillard and Nicolai also took the decision to evacuate does not detract from the above conclusion, because what has been decided at the highest level must be decisive. Apparently both the UN and the Dutch Government considered this decision to be of such importance that they left it up to the Force Commander Janvier and two of the highest Dutch military officers. The Dutch Government participated in that decision-making at the highest level. For that matter, as appears from the statement of Nicolai during the preliminary witness examination, the decision taken in Sarajevo only regarded the evacuation of the refugees, not the evacuation of Dutchbat.

During the preliminary witness examination (court record p. 2), General Nicolai stated the following about the order of 13 July 1995 attached to the court record of his witness examination, which in paragraph 8 refers to Nicolai as "authorized negotiator on behalf of NL Government and UNPROFOR":

Nicolai stated furthermore (court record p. 6):

Former Minister of Defense Voorhoeve stated as a witness (court record p. 6):

In connection with page 206 of exhibit 4, attached to the court record of the preliminary witness examination (Court: the examination conducted by the Parliamentary Inquiry Committee) the following question was put to Voorhoeve about the subject of the "Double role of Mr. Nicolai, representative of the UN and the Netherlands" (court record of preliminary witness examination p. 8):

Voorhoeve answered:

The aforesaid exhibit 4 (the examination of Voorhoeve by the Parliamentary Inquiry Committee, p. 207), includes the following:

From what has been established in the above under 2.30 and 2.31 appears furthermore that Karremans received instructions about the evacuation that were jointly issued by Nicolai in his capacity of 'authorized negotiator of the NL Government and UNPROFOR', so also on behalf of the Dutch Government. Karremans also interpreted it in this way, given his fax to Mladic in which he wrote:

(section underlined by the Court)

Based on the above, the Court concludes the following. On 11 July 1995, the UN and the Dutch Government took the decision to evacuate Dutchbat together with the refugees. This implied that Dutchbat, after the evacuation had been concluded, would be withdrawn to the Netherlands in the near future. As of 11 July 1995, a transition period started in which matters in Potocari were being completed. An important part of the completion was the aid to and the evacuation of the refugees. Although, as stated by Van Baal during his preliminary witness examination (court record p. 2), at that moment Dutchbat was not being withdrawn from UNPF yet, there could not be any doubt about the fact that this would certainly take place after the evacuation. Nowhere is it suggested in the documents that Dutchbat would have any role to fulfil within UNPF after the evacuation. The distinction made by the District Court between the right invested in the Netherlands to withdraw Dutchbat from Bosnia and Herzegovina and the right of the UN to decide about the evacuation of the UNPROFOR units from Srebrenica is formally correct, but does not do enough justice to the fact that the one formed an integral part of the other.

An important part of Dutchbat's remaining task after 11 July 1995 consisted of the aid to and the evacuation of the refugees. During this transition period, besides the UN, the Dutch Government in The Hague had control over Dutchbat as well, because this concerned the preparations for a total withdrawal of Dutchbat from Bosnia and Herzegovina. In this respect Nicolai fulfilled a double role because he acted on behalf of the UN and also on behalf of the Dutch Government. The fact that The Netherlands had control over Dutchbat was not only theoretical, this control was also exercised in practice: the Government in The Hague, represented by two of its highest military officers, Van den Breemen and Van Baal, together with Janvier took the decision for the evacuation of Dutchbat and of the refugees, Minister Voorhoeve gave the instruction that Dutchbat was not allowed to cooperate in a separate treatment of the men, and he told Karremans that he had to save as much as possible. Through the intermediary of Nicolai in his double role, the Dutch Government also gave orders to Karremans regarding the evacuation (see 5.16 above). According to the judgment of the Court, in all these cases it was a matter of orders being given and not just transmitting the wishes or expressing the concerns, which Nicolai understood very well ("if the Dutch Government says something like that, as a military officer you just carry it out"). Nicolai sent the order by fax on 13 July 1995 to the Crisis Control Centre at the Ministry of Defense (DCBC) [Defensie Crisisbeheersingscentrum] in The Hague to find out whether the Dutch Government could live with this (see 5.13 above). Karremans also held the view that he was now (jointly) under command of the Dutch Government and acted accordingly (see 5.16 above). In the opinion of the Court it is beyond doubt that the Dutch Government was closely involved in the evacuation and the preparations thereof, and that it would have had the power to prevent the alleged conduct if it had been aware of this conduct at the time. The facts do not leave room for any other conclusion than that, in case the Dutch Government would have given the instruction to Dutchbat not to allow Nuhanovic (as well as his father Ibro Nuhanovic) to leave the compound or to take him along respectively, such an instruction would have been executed. Moreover, in this respect it is important that, as will appear below, the alleged conduct was contrary to the instruction given by General Gobillard to protect the refugees as much as possible, and that the State held it in its power to take disciplinary actions against that conduct.

The allegations brought against the conduct of Dutchbat by Nuhanovic are directly related to the Dutch Government's decisions and instructions. The allegation that Dutchbat refused to include Nuhanovic on the list of local staff is directly related to the manner in which the evacuation of the refugees was to be carried out, i.e. with respect to the question who would be taken along. This appears, for example, from the fact that Karremans contacted Van Baal because he wanted to take Mandžic along (statement Karremans during the preliminary witness examination, court record of examination, p. 9). The allegation that Dutchbat sent Muhamed Nuhanovic away, and in doing so, Ibro Nuhanovic as well, is related to the way in which the evacuation of the refugees was carried out. The allegation that Dutchbat failed to interfere when Muhamed Nuhanovic and Ibro Nuhanovic were separated from their mother/wife is related to how the instruction given by Minister Voorhoeve to prevent a separate treatment of the men, was carried out. The latter also applies to the allegation that Dutchbat did not report immediately about the separation of the men and women and the other human rights violations that were observed.

The Court concludes therefore that the State possessed 'effective control' over the alleged conduct of Dutchbat that is the subject of Nuhanovic's claim and that this conduct can be attributed to the State. In so far, grounds 3-9 and 11-13 have been put forward successfully.

Assessment of the substance of the allegations

The Court will now proceed to discuss the question whether the allegations made by Nuhanovic hold ground. After increase of the claim on appeal, the following allegations are involved:

According to Nuhanovic, the State acted contrary to the following standards:

The Court will first discuss allegations (i) and (ii). In the first place the Court will test the alleged conduct of Dutchbat against the provisions of national Bosnian law. Apart from the State's opinion - which has been considered to be incorrect in the above - that the Court should judge Dutchbat's conduct strictly in accordance with international law, it is not disputed that based on Dutch international private law the alleged wrongful act must be tested against the law of Bosnia and Herzegovina. Additionally, the Court will test the alleged conduct against the legal principles contained in articles 2 and 3 ECHR and articles 6 and 7 ICCPR (the right to life and the prohibition of inhuman treatment respectively), because these principles, which belong to the most fundamental legal principles of civilized nations, need to be considered as rules of customary international law that have universal validity and by which the State is bound. The Court assumes that, by advancing the argument in its defense that these conventions are not applicable, the State did not mean to assert that it does not need to comply with the standards that are laid down in art. 2 and 3 ECHR and art. 6 and 7 ICCPR in peacekeeping missions like the present one.

In addition, as pleaded by Nuhanovic and not challenged by the State, pursuant to art. 3 of the Constitution of Bosnia and Herzegovina, provisions from treaties to which the Republic of Bosnia and Herzegovina is a party have direct effect and constitute a part of the law of Bosnia and Herzegovina. Because the ICCPR was in force in any case in 1995, the articles 6 and 7 ICCPR constitute a part of Bosnian law that the Court must apply in accordance with international private law and consequently these provisions have priority over the law of

Bosnia and Herzegovina, in so far as this law were to deviate from the provisions of this treaty.

Allegation (ii) implies that Dutchbat should not have sent Muhamed Nuhanovic away from the compound and should have taken him along with the battalion. If Dutchbat had not sent him away, Muhamed, Nasiha and Ibro Nuhanovic would have survived the genocide, according to Nuhanovic.

Muhamed Nuhanovic was not employed by the UN, nor had he been working for Dutchbat. He was the minor brother of Nuhanovic who was indeed employed by the UN. After the fall of the enclave Srebrenica, Muhamed, together with his father Ibro and his mother Nasiha, had sought refuge at the compound.

At the beginning of the evening (Nuhanovic undisputedly stated that it was 19.30 hrs) of 13 July 1995, Muhamed and his family were still at the compound. All other refugees had left the compound in the meantime. Already at that time, Franken had refused to honor Nuhanovic's request to include Muhamed in the list of local staff, to give him a UN-pass, to not deliver him to the Bosnian Serbs and to take him along. The kind of knowledge that Dutchbat had (in any case) at the beginning of that evening regarding the incidents that had taken place outside the camp has been established in the above under 2.27. Those incidents, especially when taken into consideration together, were alarming to such an extent that Karremans and Franken reasonably could not have drawn any other conclusion than that the able-bodied men that were going to leave the compound from that moment to be 'evacuated' by the Bosnian Serbs, ran the real risk of being killed or at least of being subjected to inhuman treatment. In other words: at the latest from that moment on, Dutchbat should have known that, at least concerning the able-bodied men, it was not (any longer) a matter of evacuation because they were deported in order to be killed or to suffer serious physical abuse. The fact that especially Major Franken was aware of this situation appears from his statements before the Parliamentary Inquiry Committee and the International Criminal Tribunal for the former Yugoslavia (ICTY), which show that he (although the situation regarding the 'white house', i.e. the way in which the Bosnian Serbs treated the men became worse and he feared for the men) had consciously taken the decision to continue the evacuation for the purpose of not putting the women and children into danger (Examinations Parliamentary Inquiry Committee p. 76 and exhibit 52 p. 1056 sentences 1-7). In another examination before the ICTY, Franken testified that on the evening of the 12th:

(exhibit 13 to summons p. 2021)

These statements can only mean that Franken was conscious of the fact that the men ran a real risk of being killed or of being subjected to inhuman treatment if they were to leave the compound.

The Court observes for that matter that although the UN and the Netherlands had decided to evacuate the refugees in the evening of 11 July 1995, whereby the UNHCR would

take the lead, it is less evident whether Dutchbat at any moment received the instruction to cooperate in the evacuation by the Bosnian Serbs. Whatever the case may be, the fact cannot be assumed that such an instruction would have implied that they also would have had to support the evacuation if the able-bodied men that were staying at the compound would therefore risk to be killed or to suffer inhuman treatment by the Bosnian Serbs. For that reason it would not be contrary to the instruction of the UN or the Dutch Government if Dutchbat had decided not later than the end of the afternoon of 13 July 1995 to no longer cooperate in the evacuation because of the above mentioned risks. This meant that Dutchbat, according to the standards of the law of Bosnia and Herzegovina and under the legal principles (with binding effect on the State) that are laid down in art. 6 and 7 ICCPR, did not have the right to send Muhamed Nuhanovic away from the compound. According to those standards it is not allowed to surrender civilians to the armed forces if there is a real and predictable risk that the latter will kill or submit these civilians to inhuman treatment. By doing so, Dutchbat also acted contrary to the instruction given by General Gobillard "to take all reasonable measures to protect refugees and civilians in your care". For when it had become clear at the latest at the end of the afternoon on 13 July 1995 that the evacuation of the men was (had become) life-threatening, Dutchbat could no longer put up as a defense that it was obeying the instruction to support the evacuation. In conformity with the instruction issued by General Gobillard, from that moment on Dutchbat should have stopped its assistance to the evacuation as it was carried out by the Bosnian Serbs, in any case where it concerned the able-bodied men.

The judgment that Dutchbat did not have the right to send Muhamed Nuhanovic away from the compound could only be different in case Muhamed has left on his own free will, as argued by the State but contested by Nuhanovic, or in case there was sufficient ground for justification for sending Muhamed away. The Court will now examine whether one of these cases presents itself.

The Court holds the opinion that the State accomplished that Muhamed left the compound against his will. Major Franken testified that UNMO Major De Haan had requested to include Muhamed in the list of local staff that was allowed to leave with Dutchbat, that he (Franken) had refused this and that, now that Muhamed had not been included in the list of 29 (Court: of local personnel that was allowed to leave with Dutchbat), this meant that he had to leave the compound and that, while it was father Ibro's own choice to stay or to leave, his mother and brother did not have a choice (court record of preliminary witness examination, p. 9-11). The Court believes that in the given context, this explicit refusal by Franken to include Muhamed in the list and to take him along, could not in all reasonableness be interpreted by Muhamed in any other way than as a signal to leave the compound. After all, the request to be included in the list had been made, and so much must have been clear to Franken as well, in order not to have to leave the compound and to go along with Dutchbat. The fact that Muhamed did not have a choice, as appears from his statement, was also the opinion of Franken himself.

Furthermore, the State put forward in its defense that Nuhanovic is wrong in isolating Muhamed's position from the other refugees in and outside the compound. The Court also rejects this defense. The Court does not need to give an opinion on the position of the refugees that were staying outside the compound or the other refugees inside the compound. The Court only needs to express its opinion on the position of Muhamed, Ibro and Nahisa. The Court deems that Dutchbat should not have ensured that Muhamed left the compound at the beginning of that evening, because of the knowledge Dutchbat had gathered in the meantime about the risks that Muhamed would be exposed to upon leaving the compound. This conclusion is regarded apart from the question whether the same applies to the other refugees that had already left the compound earlier and the Court will not express any opinion regarding that question. The time when Muhamed left the compound is different from the period within which the other refugees left the compound. Also the fact that Muhamed left the compound involuntarily could be different from the other refugees. The Court will not pronounce its opinion on that either. Muhamed, together with his family, was still staying at the compound after the other refugees (possibly with the exception of the Mustafic family) had already left. At that moment there was an opportunity for Dutchbat to make a separate consideration with respect to Muhamed and, in spite of Franken's earlier refusal, to allow him to stay at the compound. Considering the serious consequences - apparent to Dutchbat - that were ahead of Muhamed if he were to leave the compound and in view of the apparent wish expressed by Nuhanovic on behalf of his brother earlier that day to be allowed to stay at the compound, Dutchbat should have reconsidered that decision according to the current situation at that time.

The above also implies that it is not relevant for this case whether Dutchbat could have allowed all the other refugees that had sought shelter at the compound to stay there, in relation to the food, water and other facilities available. The only thing that matters is whether Dutchbat had enough supplies and facilities to let Muhamed stay at the compound. The Court believes this to be plausible beyond any doubt and the State has not denied this fact either. The State's defense that the Bosnian Serb Army checked everything and that the departure of the refugees had become inevitable due to the attitude of the Bosnian Serbs fails in the case of Muhamed; there is nothing to show that the Serbs forced Dutchbat to send Muhamed away from the compound.

The State's defense that the evacuation could not be stopped because of the great risk for women and children does not succeed either. At the time when Muhamed left the compound, the women and children had already left the compound. The fact that the women and children would have run a risk if Muhamed had been allowed to stay at the compound has not been substantiated in any way and the Court does not consider that to be plausible anyway.

The Court concludes that the State acted wrongfully towards Muhamed by ensuring that he left the compound against his will. The Court also believes that Muhamed would still be alive (except for special circumstances that are not under discussion) if the State had not acted wrongfully towards him. Although the State disputes that Dutchbat had the obligation to take Muhamed along to a safe area, in establishing the causal relationship it is not relevant - also under Bosnian law - whether the State had the obligation to take him to a safe area, but to find out what would have happened if the State had not acted wrongfully. In this respect, Nuhanovic has argued that if Muhamed had not been forced to leave the compound, his family members would still be alive today, which he further substantiated by pointing out that everybody who was still alive and well at the compound on the evening of 13 July has arrived in Tuzla alive. In that respect Nuhanovic also asserted that the agreement between General Smith and Mladic came down to the decision that all persons that were present at the compound were allowed to leave with Dutchbat. Finally, Nuhanovic has pointed out that the departing Dutchbat convoy was never submitted to any inspections whatsoever. The State has not contested all of this and has not put forward in particular that Muhamed would have been left behind in Potocari. So with the above, the causal relationship between the compulsory departure of Muhamed from the compound and his death has been demonstrated.

Although the above can independently support Nuhanovic's claim under I, nevertheless the Court will address the State's defense that Dutchbat did not have the obligation to take Muhamed along to a safe area. Briefly summarized, what this defense boils down to is that Muhamed was not employed by the UN, that he was not in the possession of a UN-pass while only persons who had a UN-pass were allowed to be evacuated together with Dutchbat, that the Serbs knew exactly who was working for Dutchbat, that Dutchbat took into account and, considering the experiences of the past, had reasons to take into account that the Bosnian Serbs would closely inspect the departing convoy and that the taking along of persons without or with a false UN-pass would imply enormous risks for the remaining participants in the convoy. Briefly summarized, Nuhanovic has objected to this by stating that a UN-pass was not necessary, that in addition a UN-pass could be made at the compound, that there was room left on the 'list of 29' because that list had slightly 'thinned out' and, finally, that it has not been substantiated that taking Muhamed along would involve such large risks, especially risks to other persons than Muhamed personally, which would have given Dutchbat the right to refrain from taking him along.

The Court holds the opinion that it has not been demonstrated sufficiently that the possession of a UN-pass was a requirement that had been demanded by the Bosnian Serbs. Karremans and Mladic had agreed that the local personnel was allowed to leave with Dutchbat. It has not become apparent that during the consultations the possession of a UN-pass had been set as a condition for departure together with Dutchbat. Karremans himself did not state anything about that, he only stated that it was logical that this would be necessary (court record of preliminary witness examination p. 10) and that the possession of a UN-pass clearly had been an issue during the meetings with the representatives of Mladic. However, the Court cannot conclude from this that having a UN-pass had been explicitly or implicitly been stipulated as a condition by the Bosnian Serbs. Furthermore, the Court attaches importance to the fact that the agreement between General Smith and Mladic of 19 July 1995, two days before Dutchbat left the compound, refers to "up to thirty locally-employed personnel", but that this agreement does not mention the requirement of the UN-pass, whereas that would have been logical if the possession of a UN-pass really was a condition stipulated by Mladic. Franken's statement shows that the possession of a UN-pass was not necessary. For Franken has testified that Mladic had granted permission for the people employed by the Opština, who were not employed by the UN, to leave with Dutchbat and that on the list that was drawn up subsequently appeared both local personnel employed by the Opština and persons with UN-passes, as far as still present (court record of preliminary witness examination p. 7-8).

In addition, the Court takes the position that it would have been possible to make a UN-pass for Muhamed at the compound. Nuhanovic has substantiated this argument, among other matters, by referring to the statements of Oosterveen and Karremans (court record of preliminary witness examination Oosterveen p. 6 and Karremans p. 10), whereas the State has only indicated that it is not sure whether this was indeed possible, because the statements that have been rendered about this issue are contradictory. The State has not put forward a reasoned defense against the argument of Nuhanovic and therefore this assertion has been established as a fact between the parties. For that matter, the Court deems that the correctness of this assertion is proven conclusively by the quoted statement of Oosterveen because, as appears from his statement, he had personal experience in producing UN-passes at the compound. The latter does not apply to the other witnesses who gave evidence about this subject.

In conclusion, the Court believes that, considering the great interests of Muhamed that were at stake, the possible risks that were related to taking Muhamed along with or without a UN-pass in reasonableness should not have resulted in the decision not to take him along. The Court admits that Dutchbat, given the earlier experiences, had to take into account that the convoy that would leave the compound would be thoroughly inspected by the Serbs. The Court also accepts that taking Muhamed along, who was not employed by the UN and who had not worked for Dutchbat, would have implied a certain risk, but that this risk could have been reduced by making a UN-pass for Muhamed, by hiring him, as proposed by Major De Haan, as a cleaner and by putting him on the list of local personnel. The State has not disputed the assertion that there was enough room on that list because it had 'thinned out'. In addition, the defense failed to demonstrate sufficiently that Dutchbat, in all reasonableness, had to take into account any other risk than the one which implied that Muhamed, if checked by the Bosnian Serbs, would have been stopped and killed after all. The State has not brought forward any incidents from the past which reasonably could lead to the conclusion that in case of an inspection, not only the persons against which the Bosnian Serbs objected but also the other participants in the convoy would be in danger. The incident mentioned by the State, when a Bosnian Minister had been taken out of a convoy and had been executed, rather points out the contrary. The State quoted from a statement made by Major De Haan, who thought it would be conceivable that, on the occasion of an inspection by the Serbs, personnel (including Dutchbat) would be pulled from the busses and shot summarily. Apart from the fact that it is not clear whether the State adopts De Haan's view, matters that are conceivable do not, in reasonableness, have to be taken into account. Furthermore, it has not become apparent whether De Haan's statement, about matters being conceivable, was actually based on facts.

The State also brought forward that based on standing orders Dutchbat was not allowed to take along other civilians than those who were personnel members of the UN. The Court disregards this defense because it believes that the specific order by General Gobillard to protect the refugees as much as possible had priority over the standing order referred to by the State.

The Court concludes that the State, by ensuring that Muhamed left the compound and by not taking him along to a safe area, which resulted in the death of Muhamed, acted wrongfully towards Nuhanovic, under the provisions of art. 154 Act on Obligations of Bosnia and Herzegovina as well as based on a violation of the right to life and the prohibition on inhuman treatment. Pursuant to art. 171 paragraph 1 Act on Obligations of Bosnia and Herzegovina, the State is liable for the conduct of the Dutchbat members, who were employed by the State and who caused the damage "in the course of their work or in connection with work" (from the translation of exhibit 62 to the summons). The opinion of the State that liability would only exist if Dutchbat were under 'direct control' of the State is not correct. This is not supported by the text of art. 171 and has not been substantiated by the State either. The liability of the State also results from the principle of 'effective control', as considered in the above. Pursuant to art. 155 Act on Obligations of Bosnia and Herzegovina, the State is liable for immaterial damage which Nuhanovic has suffered consequently and will possibly yet suffer.

The State has not acted wrongfully towards Ibro, who had permission to stay at the compound, however, his death may be considered to be the result of the wrongful acts with respect to Muhamed and therefore may be attributed to the State. After all, the Court deems it understandable and predictable that, under the given circumstances, Ibro would choose to go along with his minor son. Therefore, the State is also liable for the damage Nuhanovic has suffered as a consequence of his father's death. The allegation that the State acted wrongfully towards Nasiha has not been sufficiently substantiated. According to Nuhanovic, being a woman she had nothing to fear from the Serbs, and for the lack of a detailed explanation, it cannot be established why Dutchbat should not have let her leave the compound.

The above means that the claim under I in that sense will be allowed and that the Court in its final judgment will rule that on account of the wrongful act the State is liable for damages that Nuhanovic has suffered and will yet suffer as a result from the death of Muhamed and Ibro Nuhanovic.

Since the claim under I has been declared allowable based on the allegations and grounds as discussed in the above, the Court will not need to address the allegations (iii) and (iv). The other standards which Nuhanovic relied upon, including the Genocide Convention referred to in ground for appeal 10, will not need to be discussed either. After all, Nuhanovic did not base a separate claim on these allegations and infractions of legal standards.

However, the Court will address allegations (v) and (vi), because Nuhanovic does claim separate rulings on these.

The allegation that the State failed to institute criminal proceedings

Nuhanovic reproaches the State that it failed to institute criminal proceedings regarding the conduct of the Dutch troops that sent the brother and father of Nuhanovic away from the compound (ground 14). He demands the Court to rule that the State violated the Genocide Convention, the ECHR and ICCPR by not starting a criminal investigation into the violations of these conventions committed by the Dutch troops. From the explanation of that ground for appeal, the Court understands that Nuhanovic's ground is about the conduct of Karremans and Franken, which he qualifies as assisting to genocide.

Nuhanovic lodged a complaint with the public prosecutor against [X], [Y] and [Z] in July 2010. Subsequently, the Public Prosecution Service started an inquiry into the facts, which inquiry had not yet been concluded at the time of the oral pleadings before this Court. The Court understands that their allegation now is that during 15 years the State failed to start such an inquiry. Nuhanovic asserts that because of this negligence he suffered immaterial damages.

The Court judges as follows. The inquiry that Nuhanovic desires is presently taking place. Therefore he no longer has an interest in a ruling on that issue.

The State rightfully pointed out that if the Public Prosecution Service, after concluding their inquiry, decides to refrain from prosecution, Nuhanovic has the right to lodge a complaint pursuant to art. 12 Code of Criminal Procedure (Sv.). The argument that the Public Prosecution Service and therefore the State acted unlawfully by failing to institute proceedings during 15 years, cannot be judged in the present case without dealing with questions such as the possible punishability of the alleged conduct of the Dutch troops brought forward by Nuhanovic, which questions are closely related to matters that are to be adjudicated in a complaints procedure under art. 12 Sv. and that are the exclusive prerogative of the criminal court judge. If the Court would permit itself to judge these questions, it would inadmissibly be prejudging a complaints procedure under art. 12 Sv.

The conclusion is that ground 14 fails and that the claim based on that ground for appeal will be dismissed.

The allegation that mr. Punt should not have been replaced

What this ground of Nuhanovic basically boils down to is that mr. Punt, who presided the personal appearance of the parties in court in the case of the Mustafic family against the State, was taken off the case because of his assessment of the merits of the case. Nuhanovic claims that his substitution constituted a violation of his right to a fair trial as referred to in art. 6 ECHR. The motives presented by the District Court in its judgment regarding the substitution of mr. Punt are considered by Nuhanovic to be factually incorrect and unclear. Nuhanovic demands the Court to rule that the State is liable for damages suffered by Nuhanovic due to the violation of his right to a fair trial, at least to rule that the State violated that right.

Art. 155 paragraph 1 Code of Civil Procedure stipulates that a judge, before whom evidence was provided in a case, should as much as possible be involved in rendering the final judgment. The decision to depart from this rule and the reasons for doing so are mentioned in the judgment, while no appeal is allowed for acting in derogation of this rule (art. 155 paragraph 2).

Since Nuhanovic argues that his right to a fair trial has been violated and that this constitutes one of the 'breaking grounds' (justification for allowing the appeal) generally accepted by law, as a consequence the appeal lodged by Nuhanovic is allowed by the Court. Furthermore, the Court holds the opinion that the ban on legal remedies as laid down in art. 155 paragraph 2 Rv. is not applicable to an allegation such as this one, because this allegation, if considered well-founded, would also have constituted a violation of the right to a fair trial (i.e. before an impartial law court) if no evidence had been produced before mr. Punt.

The arguments put forward by Nuhanovic, which according to him serve as the basis for this part of their claim, are basically that mr. Punt was taken off their case in order to influence the outcome of that case. If this fact would be established between the parties this would represent a serious violation of the right to a fair trial by an impartial tribunal to which Nuhanovic is entitled pursuant to art. 6 ECHR and, apart from the question whether through this action Nuhanovic also suffered damages, at least the allowance of his demand to rule that this right has been violated should be considered (cf. HR [Supreme Court] 19 March 2010, NJ 2010, 172; LJN BK 8146). Now that Nuhanovic has offered to produce evidence in support of his allegation, the Court shall admit him to furnish this evidence.

Pending the furnishing of this evidence, the Court shall stay any further decision on this subject.

Ruling

The Court: