{"title":"Editorial – Volume 37, Issue 1 2022","authors":"Matilda Radoš","doi":"10.5334/ujiel.593","DOIUrl":"https://doi.org/10.5334/ujiel.593","url":null,"abstract":"","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2022-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"70724267","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article argues that tort law has a role to play in holding the British government to account for overseas violations of international human rights law and international humanitarian law. The context of tortious claims for overseas violations of international human rights law and international humanitarian law brings to the fore, on one hand, issues of attribution and Crown and foreign acts of State and, on the other hand, issues of private international law. This article describes the approach of UK courts to key issues raised by tortious claims for overseas violations of international human rights law and international humanitarian law, namely subject-matter jurisdiction and the law applicable to the merits.
{"title":"Tort Law and State Accountability for Overseas Violations of International Human Rights Law and International Humanitarian Law: The UK Perspective","authors":"U. Grušić","doi":"10.5334/ujiel.545","DOIUrl":"https://doi.org/10.5334/ujiel.545","url":null,"abstract":"This article argues that tort law has a role to play in holding the British government to account for overseas violations of international human rights law and international humanitarian law. The context of tortious claims for overseas violations of international human rights law and international humanitarian law brings to the fore, on one hand, issues of attribution and Crown and foreign acts of State and, on the other hand, issues of private international law. This article describes the approach of UK courts to key issues raised by tortious claims for overseas violations of international human rights law and international humanitarian law, namely subject-matter jurisdiction and the law applicable to the merits.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48931233","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica safe area designated by the United Nations (‘UN’) and the fate of more than 30,000 people who had fled to either a nearby compound of the Dutch battalion or other locations, including about 7,000 Bosniac males. However, the Supreme Court established the State’s responsibility only regarding a group of approximately 350 males who had been allowed inside the Dutchbat compound but were then handed over to the Bosnian Serbs. This contribution examines from the perspective of the right to fair trial how the courts determined the State’s liability for damages in relation to these males. It questions whether the parties to the proceedings had an opportunity to present their arguments on facts and evidence as to a percentage of the State’s liability for damages. It also views the Supreme Court’s determination of the liability at 10% as problematic.
{"title":"Fair Trial in Mothers of Srebrenica et al.: Guessing as a Form of Reasoning","authors":"Zane Ratniece","doi":"10.5334/ujiel.547","DOIUrl":"https://doi.org/10.5334/ujiel.547","url":null,"abstract":"On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica safe area designated by the United Nations (‘UN’) and the fate of more than 30,000 people who had fled to either a nearby compound of the Dutch battalion or other locations, including about 7,000 Bosniac males. However, the Supreme Court established the State’s responsibility only regarding a group of approximately 350 males who had been allowed inside the Dutchbat compound but were then handed over to the Bosnian Serbs. This contribution examines from the perspective of the right to fair trial how the courts determined the State’s liability for damages in relation to these males. It questions whether the parties to the proceedings had an opportunity to present their arguments on facts and evidence as to a percentage of the State’s liability for damages. It also views the Supreme Court’s determination of the liability at 10% as problematic.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"46641357","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
There is a clear normative tension between the immunities of international organizations and the human rights to a court and to a remedy. Most national jurisdictions around the world have so far failed to recognize such a normative conflict and applied immunities irrespective of their consequences on individual claimants. However, following the Waite and Kennedy jurisprudence of the European Court of Human Rights, a number of European national jurisdictions have accepted the idea that applying international organizations’ immunities may lead to breach the right to a court in case the claimants do not have access to an alternative remedy. This contribution focuses on the latter approach, which will be called ‘alternative-remedy approach’. Drawing upon Gunther Teubner conceptualization of fundamental rights, it stresses the violence of the today’s prevalent approach toward immunities, and maintains that, by refocusing the decision-making process on the situation of individual claimants, the alternative-remedy approach ‘humanizes’ a decision-making process otherwise blind to the fate of human beings in flesh and blood. The ambiguity of the European Court of Human Rights’ jurisprudence as to the relevance of the alternative-remedy standard is also discussed, together with the consequences it had on the case-law of European national courts.
{"title":"Litigating the Immunities of International Organizations in Europe: The ‘Alternative-Remedy’ Approach and its ‘Humanizing’ Function","authors":"Luca Pasquet","doi":"10.5334/ujiel.551","DOIUrl":"https://doi.org/10.5334/ujiel.551","url":null,"abstract":"There is a clear normative tension between the immunities of international organizations and the human rights to a court and to a remedy. Most national jurisdictions around the world have so far failed to recognize such a normative conflict and applied immunities irrespective of their consequences on individual claimants. However, following the Waite and Kennedy jurisprudence of the European Court of Human Rights, a number of European national jurisdictions have accepted the idea that applying international organizations’ immunities may lead to breach the right to a court in case the claimants do not have access to an alternative remedy. This contribution focuses on the latter approach, which will be called ‘alternative-remedy approach’. Drawing upon Gunther Teubner conceptualization of fundamental rights, it stresses the violence of the today’s prevalent approach toward immunities, and maintains that, by refocusing the decision-making process on the situation of individual claimants, the alternative-remedy approach ‘humanizes’ a decision-making process otherwise blind to the fate of human beings in flesh and blood. The ambiguity of the European Court of Human Rights’ jurisprudence as to the relevance of the alternative-remedy standard is also discussed, together with the consequences it had on the case-law of European national courts.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"1 1","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"41490814","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This paper addresses the question whether the premises of the International Criminal Tribunal for the former Yugoslavia (ICTY), and court judgments adjudicating the responsibility of various actors for what happened in Srebrenica, could be considered “legal monuments”, urging us to remember and show respect for the victims of the Srebrenica genocide of 1995.
{"title":"Legal Monuments for Srebrenica in the Hague","authors":"O. Spijkers","doi":"10.5334/ujiel.542","DOIUrl":"https://doi.org/10.5334/ujiel.542","url":null,"abstract":"This paper addresses the question whether the premises of the International Criminal Tribunal for the former Yugoslavia (ICTY), and court judgments adjudicating the responsibility of various actors for what happened in Srebrenica, could be considered “legal monuments”, urging us to remember and show respect for the victims of the Srebrenica genocide of 1995.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"44157562","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States (i.e., States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts’ reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.
{"title":"Attributing Conduct in the Law of State Responsibility: Lessons from Dutch Courts Applying the Control Standard in the Context of International Military Operations","authors":"Cedric Ryngaert","doi":"10.5334/ujiel.546","DOIUrl":"https://doi.org/10.5334/ujiel.546","url":null,"abstract":"In two decisions of 2019, the Dutch courts have come up with novel interpretations of the ‘control-based’ standard of attribution in the international law of State responsibility. This is a standard of attribution that is laid down in Article 8 of the International Law Commission‘s (ILC) Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), which is, by and large, reflective of customary international law. The traditional understanding of Article 8 ARSIWA is that it applies to relations between States and private persons or entities, in particular armed groups: conduct of a non-State armed group is attributed to a State to the extent that the State exercises control over that group. However, the Dutch courts have extended the scope of application of Article 8 ARSIWA to conduct of organs of international organisations (the UN) as well as foreign States (i.e., States other than the Netherlands). Internationally speaking, this is a novel interpretation of Article 8 ARSIWA, for which there are no precedents. After introducing the Dutch courts’ reasoning in these cases, the contribution zooms out and inquires what the Dutch evolutions imply for the development of the controlbased attribution standard in the international law of State responsibility. The author argues that the relatively peculiar interpretation of Article 8 ARSIWA, as applying to interactions between States and international organisations and between States inter se, is practically viable in a narrow range of scenarios characterised by relatively strong politico-military relations and hierarchies.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"47068622","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Introduction: Special Issue ‘The Legacy of the Mothers of Srebrenica Case’","authors":"Cedric Ryngaert, K. Istrefi","doi":"10.5334/ujiel.552","DOIUrl":"https://doi.org/10.5334/ujiel.552","url":null,"abstract":"","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45524322","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life.
{"title":"The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result","authors":"K. Istrefi","doi":"10.5334/ujiel.544","DOIUrl":"https://doi.org/10.5334/ujiel.544","url":null,"abstract":"In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"45727951","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article explains the Dutch theory of partial liability and why the application of this theory benefited the plaintiffs in the case of Mothers of Srebrenica from a tort law perspective. Partial liability is a theory under Dutch law to redeem causal uncertainties, and therefore functions as an exception to the main rule of sufficient degree of proof of a condicio sine qua non (CSQN) between the wrong and the damage, justified by legal justice and reasonableness. Loss of a chance is one variation of partial liability and was applied in the case Mothers of Srebrenica. The theory of lost chance essentially makes it possible to establish liability to a proportion, notwithstanding the causal uncertainty between the wrong and the original damage which would have resulted in a denial of the claim under tort law.
{"title":"Mothers of Srebrenica: Causation and Partial Liability under Dutch Tort Law","authors":"R. Rijnhout","doi":"10.5334/ujiel.543","DOIUrl":"https://doi.org/10.5334/ujiel.543","url":null,"abstract":"This article explains the Dutch theory of partial liability and why the application of this theory benefited the plaintiffs in the case of Mothers of Srebrenica from a tort law perspective. Partial liability is a theory under Dutch law to redeem causal uncertainties, and therefore functions as an exception to the main rule of sufficient degree of proof of a condicio sine qua non (CSQN) between the wrong and the damage, justified by legal justice and reasonableness. Loss of a chance is one variation of partial liability and was applied in the case Mothers of Srebrenica. The theory of lost chance essentially makes it possible to establish liability to a proportion, notwithstanding the causal uncertainty between the wrong and the original damage which would have resulted in a denial of the claim under tort law.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":" ","pages":""},"PeriodicalIF":0.6,"publicationDate":"2021-07-16","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"49623935","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This article assesses the role of civil society and the Independent Investigative Mechanism for Myanmar (IIMM) in individual accountability proceedings by foreign domestic courts for the crimes committed against the Rohingya in light of the obstacles faced by Myanmar courts, the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Due to the inability of third States to investigate the crimes committed within Myanmar, they depend (almost) exclusively on civil society organisations’ (CSO) documentation to assert their jurisdiction. The article argues that two factors necessitated the creation of the IIMM as a legal bridge between documentation and States’ investigatory and prosecutorial duties: the concerns about the reliability of CSOs’ documentation and the impediments in its direct admissibility in criminal trials. The combined initiatives of civil society and the Mechanism constitute an essential component of States’ duty in fulfilling their obligations to investigate and prosecute the crimes against the Rohingya. Finally, the Mechanism sets a precedence where civil society could actively participate in the promotion of the interests of justice.
{"title":"Civil Society and the IIMM in the Investigation and Prosecution of the Crimes Committed Against the Rohingya","authors":"Konstantina Stavrou","doi":"10.5334/UJIEL.525","DOIUrl":"https://doi.org/10.5334/UJIEL.525","url":null,"abstract":"This article assesses the role of civil society and the Independent Investigative Mechanism for Myanmar (IIMM) in individual accountability proceedings by foreign domestic courts for the crimes committed against the Rohingya in light of the obstacles faced by Myanmar courts, the International Criminal Court (ICC) and the United Nations Security Council (UNSC). Due to the inability of third States to investigate the crimes committed within Myanmar, they depend (almost) exclusively on civil society organisations’ (CSO) documentation to assert their jurisdiction. The article argues that two factors necessitated the creation of the IIMM as a legal bridge between documentation and States’ investigatory and prosecutorial duties: the concerns about the reliability of CSOs’ documentation and the impediments in its direct admissibility in criminal trials. The combined initiatives of civil society and the Mechanism constitute an essential component of States’ duty in fulfilling their obligations to investigate and prosecute the crimes against the Rohingya. Finally, the Mechanism sets a precedence where civil society could actively participate in the promotion of the interests of justice.","PeriodicalId":30606,"journal":{"name":"Utrecht Journal of International and European Law","volume":"36 1","pages":"95-113"},"PeriodicalIF":0.6,"publicationDate":"2021-04-06","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"48039559","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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