Introduced by Francesco Messineo and Paolo Palchetti

In 2008, the District Court in The Hague held that the conduct of the Dutch contingent in UNPROFOR (Dutchbat) at the time of the Srebrenica genocide should be attributed to the United Nations only, and not to the Netherlands. In July 2011, the Dutch Court of Appeal reversed the District Court’s decision, finding that Dutch peacekeepers were under the ‘effective control’ of authorities in The Hague, rather than the UN. It also found that attribution could potentially be to both the UN and the Netherlands. In September 2013, the Dutch Supreme Court confirmed the Court of Appeal’s decision, and reiterated that international law ‘does not exclude the possibility of dual attribution of given conduct’. The Supreme Court also affirmed the Court of Appeal’s legal finding that effective control could be exercised by two entities (a state and an international organisation) at the same time and with reference to the same conduct.
These three judgments offer abundant material for an in-depth analysis of the notion of ‘effective control’, which is employed as the basis for justifying the attribution to an international organization of the conduct of organs placed at its disposal by a State or another organization. What are the elements for inferring the existence of ‘effective control’? Can ‘effective control’ be inferred from wrongfully refraining to act? Is attribution to a State contributing troops also dependent upon the proof that it exercised ‘effective control’? Alongside these questions, the purpose of this zoom-in is to investigate whether the application of the criterion of attribution based on ‘effective control’ allows for the same conduct to be attributed simultaneously to the lending State and to the receiving organization. The judgments of the Dutch courts provide one of the few authorities supporting the possibility of dual attribution of the same conduct to the UN and to the sending State. While the question of dual attribution is only incidentally addressed by the judgments, the recognition that attribution of conduct can be dual is highly significant. Does this conform to the ‘effective control’ rule in Article 7 of the Articles on the responsibility of international organizations? May one infer from these judgments that, in cases of peacekeeping operations, dual attribution to both the sending State and the receiving organization is to be regarded as the rule rather than the exception? More broadly, what are the conditions justifying dual attribution in this kind of situations?