Writ of summons - Van Diepen Van der Kroef

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That does not mean, however, that this conduct can not also be attributed to the UN.This issue of dual attribution will be addressed below.Dual attribution362. The conduct of UN troops is in some cases attributed to both the UN and to the sendingState (see, R. Hofmann, in R. Hofmann et al, Die Rechtskontrolle von Organen derStaatengemeinschaft, 2007, page 29, and also, M. Zwanenburg, op. cit., page 72):‘Although a contingent might officially have been placed under the command of a UNforce Commander, it would be difficult to attribute its conduct to the UN if he was notin effective control. What matters is not exclusive control, which for instance the UNnever has over national contingents, but the extent of effective control. This would alsoleave the way open for dual attribution of certain conduct.’In the present case both the UN and the State of the Netherlands exercised effectivecontrol and the conduct/failure to act can therefore be attributed to both. Plaintiff willdemonstrate below that effective control was exercised by the State of the Netherlands,and also the manner in which that was done.363. The possibility of dual attribution is confirmed in the 2 nd ILC Report on the ILC Articlesfor International Organisations (see, Addendum number 4, page 2).Effective Control by The Netherlands364. The State of the Netherlands had ensured that it could allow its influence to count bynominating Dutch officers for senior positions within UNPROFOR. The position of theGovernment was also that The Netherlands had much more of a voice than would be thecase if the command and control were to be left entirely with the UN (see, page 2283 ofthe NIOD Report):‘The Minister of Defense, Voorhoeve, adopted the position with NIOD that these rulesrelating to Command and Control in The Netherlands, and the question where theindividual responsibilities lay, was more or less clear, but that in practice it transpiredthat it was not possible to separate these sorts of matters, with the result that they© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com154
ecame entwined. In his view, it was possible to argue logically in pure internationallaw terms that The Netherlands had placed contingents at the disposal of the UN, andthat The Netherlands only retained the right to recall those contingents but thatotherwise everything was a matter for the UN. To this The Hague would say: thesesoldiers are now UN blue helmets, and consequently this is not our problem. But that’snot how matters were in practice, said Voorhoeve.’The above quotation demonstrates that The Netherlands exercised joint effective control.365. It has been shown above under the facts relating to the refusal to permit air strikes andtheir cessation that the State of the Netherlands exercised effective control on thatmatter, and did so in order not to endanger the position of Dutchbat. This involvedexplicit instructions of the State of the Netherlands. The same was true for the conductof Dutchbat to surrender observation posts contrary to the orders of the UN, not todefend the blocking positions, not to start the defence of the Safe Area and not to offerany humanitarian relief and protection to the refugees after the fall. Even the nonreportingof war crimes is, according to the Report of the French Parliament, to be tracedback to the desire not to endanger the safety of the Dutchbat soldiers who were heldhostage (see, Part I, page 102 of the Report of the French Parliament). These issues werepossibly affected by the explicit instructions of the State of the Netherlands. Takingaccount of the enduring pattern of conduct of Dutchbat to allow its own interests toprevail in these issues contrary to the express orders of the UN, it is certain that theconduct of Dutchbat is a consequence of the effective control that was exercised by theState of the Netherlands. Plaintiff here recalls that the exercise of effective control doesnot require explicit orders to be given.366. Besides, a number of explicit orders emerge from the facts recounted above. It hasalready been shown above that Voorhoeve declared on television on 9 July 1995 that thesafety of the Dutch soldiers must have priority over air support (see, page 2147 of theNIOD Report). The Chief of the Defense Staff, Van den Breemen, in the presence ofVoorhoeve informed Kolsteren in Zagreb from The Hague on 11 July 1995 that thesafety of Dutchbat prevailed over everything (see, page 2236 of the NIOD Report).© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com155
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WRIT OF SUMMONSDISTRICT COURT, THE
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IN ORDER:on Wednesday, thetwo thous
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- every request by the inhabitants
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8. The fate of the civilian populat
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IV Tender of evidence 446I Facts5.
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NIOD. This Report is referred to as
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12. The Yugoslav People’s Army (o
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‘Prior to departing, he addressed
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- UN resolution 816 (31 March 1993)
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No. 4:Decides to ensure full respec
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…Should UNPROFOR’s presence pro
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30. To reiterate here, the question
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UN and the State of the Netherlands
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Brigade. In addition, the State of
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43. The choice in favour of deploym
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The government parties replied to t
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population during the training as
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Potocari/Srebrenica. This chain of
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63. As appears from the above, and
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eference to the failure to act of D
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‘I have been directed, today 29 M
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leaders (Milosevic, Karadzic and Ml
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observation post was not carried ou
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attack on the Safe Area on 6 July 1
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single shot being fired and OP-F wa
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immediate and robust reaction Nicol
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know what Dutchbat itself would do
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that the enclave was continuously e
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‘You are to use all means at your
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Commander therefore gave the order
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he proposed to have Karremens arres
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Brantz, to establish that there was
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officers and the State of the Nethe
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had any purpose to go ahead with th
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Voorhoeve (see also number 307 of t
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y VRS soldiers in Dutch uniform and
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population: medical matters (Dutchb
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OP-N161. The capture of OP-N is des
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Brantz (Tuzla)↕Karremans, Franken
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‘The first line of resistance to
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180. Plaintiff Mujić states (see E
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The flight to the UN compound189. D
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193. It is incomprehensible that Du
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soldiers let that be known when the
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Other points concerned forced evict
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‘On 12 and 13 July 1995, upon the
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statements put in the proceedings a
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lying on a wagon. The Dutchbat sold
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228. Only one Dutchbat officer was
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‘UNMO source about 1,000 men take
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night-time. I did not dare to leave
Page 103 and 104: 239. Plaintiff Hotič states (see E
Page 105 and 106: People had no food or water, nor we
Page 107 and 108: During all of this the Dutch soldie
Page 109 and 110: group and they were raped. I was ve
Page 111 and 112: four or five Dutchbat soldiers were
Page 113 and 114: shocked by what he had evidently se
Page 115 and 116: follows:‘An alternative position
Page 117 and 118: ‘We were deported to Tuzla later
Page 119 and 120: I arrived at the barrier shortly th
Page 121 and 122: encountered objections from the Dut
Page 123 and 124: 277. Plaintiff Hasanović was born
Page 125 and 126: Subašić282. Plaintiff Subašić w
Page 127 and 128: IILegal characterisationIntroductio
Page 129 and 130: the United Nations, Advisory opinio
Page 131 and 132: 302. The UN and the State of the Ne
Page 133 and 134: acting arise, respectively). In add
Page 135 and 136: of the Safe Area and was not immedi
Page 137 and 138: weapons of the VRS, or at least to
Page 139 and 140: consequence that the VRS could depl
Page 141 and 142: 326. Instead of taking action from
Page 143 and 144: ‘(…) I had spent days lying on
Page 145 and 146: 23 July 1995 (see H. Praamsma, J. P
Page 147 and 148: (a) (…) encouraging the progressi
Page 149 and 150: ‘Article 3 - General Principles1.
Page 151 and 152: control of UNPROFOR from the moment
Page 153: ‘The presumption can be rebutted
Page 157 and 158: Conventions obliges the Contracting
Page 159 and 160: Article 8 of the ILC Articles for I
Page 161 and 162: - secondly, it was evident that the
Page 163 and 164: international customary humanitaria
Page 165 and 166: civilians, deportation and murder.
Page 167 and 168: ‘(…) confirm that Article I doe
Page 169 and 170: also be assessed by legal criteria,
Page 171 and 172: ‘(14) UNPROFOR had participated a
Page 173 and 174: under customary law. A duty on stat
Page 175 and 176: and the State of the Netherlands ac
Page 177 and 178: for International Organisations com
Page 179 and 180: ‘(c) Provide those who claim to b
Page 181 and 182: the State of the Netherlands must p
Page 183 and 184: of the Netherlands. The UN and the
Page 185 and 186: ‘militairement avait mal conduit.
Page 187 and 188: UN but also to the purposes that ar
Page 189 and 190: possible immunity on the part of th
Page 191 and 192: ‘The United Nations shall make pr
Page 193 and 194: ‘In spite of this provision of th
Page 195: THEREFORE:If it pleases the Court t
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Writ of summons - Van Diepen Van der Kroef

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