Writ of summons - Van Diepen Van der Kroef

‘The presumption can be rebutted if it is established that the organ acted under thedirection and control of the sending state, the clearest example of which would bespecific instructions.’358. It is stated in the literature that The Netherlands exercised effective control in thepresent case if Dutchbat received instructions from The Netherlands (see, M.Zwanenburg, op. cit., page 101):‘An example in which conduct would be attributable to the troop contributing state isthe hypothetical situation that the Netherlands contingent of UNPROFOR in Srebrenicareceived instructions from its government concerning the attitude it must take towardsthe transfer of the local population by Bosnian Serb forces. If such were the case, theconduct of the contingent would be attributable to the government, even though theagreement betweand the Netherlands and the UN concerning the participation of Dutchtroops in the operation specified that the UN was in command. In the case at hand thegovernment has denied that it gave instructions to the contingent.’359. However, it is not essential for the exercise of effective control that the State supplyingtroops gave express instructions. It is sufficient that the troops in question effectivelyacted under the control of the State concerned, in which case the conduct must beattributed to that State (see, M. Zwanenburg, op. cit., pages 100 and 126):‘It is not necessary that the sending state gave express instructions in this regard,because it is sufficient that the troops in question acted under the direction and controlof the state.’360. The ICJ also confirmed in its Decision of 26 February 2007 under legal consideration400 that effective control can be exercised without explicit instructions being given.361. The above entails that if the State of the Netherlands effectively directed the conduct ofDutchbat, the conduct of Dutchbat must be attributed to the State of the Netherlands.© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com153