KILLINGS AT SREBRENICA, EFFECTIVE CONTROL, AND THE POWER TO PREVENT UNLAWFUL CONDUCT

This article analyses two nearly identical lawsuits regarding the actions of UN peacekeepers during the Srebrenica genocide. The decisions are of importance as a matter of international law for three reasons. First, the Court applied human rights obligations abroad, not by holding that the relevant treaties have extraterritorial effect, but by finding the ICCPR to have been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and determining that the standards codified in the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, in finding those obligations to have been breached, the Court relied on the Dutch battalion's eviction of the victims from its UN compound, not on any responsibility to protect those already outside the compound. Finally, on the issue of attribution, the Court of Appeal developed the doctrine of ‘effective control’ in several key respects. I argue that the Court was largely correct in its attribution analysis and that this may prove to be a landmark in the development of international law on attribution in such contexts. Most important among the issues addressed in the Court's discussion of attribution are its findings that: (i) the ‘effective control’ standard applies equally to the contributing state and the receiving international organization; (ii) ‘effective control’ includes not just giving orders, but also the capacity to prevent the wrongdoing; and (iii) troop-contributing states may sometimes hold that ‘power to prevent’ by virtue of their authority to discipline and criminally punish their troops for contravening UN orders.