Srebrenica vs. UN (1)

Back in July, I complained about a decision by the Court of Appeals in The Hague which allowed the Mothers of Srebrenica to sue the Dutch state for certain torts in relation to the Srebrenica genocide. While that case is still pending, the Supreme Court has now upheld the parallel ruling against the United Nations, confirming that, indeed, the UN cannot be sued in Dutch court. The text of the judgement is here, in Dutch. According to the Court the obligation pursuant to the UN Charter trumps the obligation pursuant to the European Convention for Human Rights. Note that we might usefully contrast this with the approach taken by the ECJ in Yusuf and Kadi.

So hang on, what is going on here? We have three treaties:

• The UN Charter says that the UN has immunity. It also says that obligations pursuant to the Charter trump the obligations UN members have pursuant to any other international agreement.
• The European Convention on Human Rights says that individuals have a right to a fair trial and a right to property, which is violated by freezing their assets without hearing them, explaining the decision, etc. It is also arguably violated by preventing certain cases from being brought to trial in the first place.
• The EU Treaties say that Member States' international obligations that pre-date the Treaties continue to be in force. (Although the are kindly invited to make any inconsistencies go away with all deliberate speed.)

When talking about the immunity of the UN in a case about Bosnians getting killed when they shouldn't have been, the Dutch say the UN Charter trumps the ECHR. In so holding, the Dutch Court relies on two judgements of the European Court for Human Rights: Beer and Regan v. Germany (1999) and Waite and Kennedy v. Germany (1999). From the latter case, the Dutch Hoge Raad quotes the following:

"59. The Court recalls that the right of access to the courts secured by Article 6 § 1 of the Convention is not absolute, but may be subject to limitations; these are permitted by implication since the right of access by its very nature calls for regulation by the State. In this respect, the Contracting States enjoy a certain margin of appreciation, although the final decision as to the observance of the Convention's requirements rests with the Court. It must be satisfied that the limitations applied do not restrict or reduce the access left to the individual in such a way or to such an extent that the very essence of the right is impaired. Furthermore, a limitation will not be compatible with Article 6 § 1 if it does not pursue a legitimate aim and if there is not a reasonable relationship between the means employed and the aim sought to be achieved (...).
67. The Court is of the opinion that where States establish international organisations in order to pursue or strengthen their cooperation in certain fields of activities, and where they attribute to these organisations certain competences and accord them immunities, there may be implications as to the protection of fundamental rights. It would be incompatible with the purpose and object of the Convention, however, if the Contracting States were thereby absolved from their responsibility under the Convention in relation to the field of activity covered by such attribution. It should be recalled that the Convention is intended to guarantee not theoretical or illusory rights, but rights that are practical and effective. This is particularly true for the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial (...).
68. For the Court, a material factor in determining whether granting ESA immunity from German jurisdiction is permissible under the Convention is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.
69. The ESA Convention, together with its Annex I, expressly provides for various modes of settlement of private-law disputes, in staff matters as well as in other litigation (...)."

The Court of Appeals drew the logical conclusion from this language and examined whether such an alternative mode of settlement existed. (And found that there were sufficient alternatives.) The Supreme Court, however, concludes that this was in error by relying on some other ECtHR language, this time a case dealing specifically with the UN, notwithstanding the apparent clash between this case law and the previous. 

"146. The question arises in the present case whether the Court is competent ratione personae to review the acts of the respondent States carried out on behalf of the UN, and, more generally, as to the relationship between the Convention and the UN acting under Chapter VII of its Charter.
147. (...) More generally, it is further recalled, as noted in paragraph 122 above, that the Convention has to be interpreted in the light of any relevant rules and principles of international law applicable in relations between its Contracting Parties. The Court has therefore had regard to two complementary provisions of the Charter, Articles 25 and 103, as interpreted by the International Court of Justice (see paragraph 27 above).
148. Of even greater significance is the imperative nature of the principle aim of the UN and, consequently, of the powers accorded to the UNSC under Chapter VII to fulfil that aim. (...) The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force (see paragraph 18-20 above).
149. In the present case, Chapter VII allowed the UNSC to adopt coercive measures in reaction to an identified conflict considered to threaten peace, namely UNSC Resolution 1244 establishing UNMIK and KFOR. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of Contracting Parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UN's key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. (...)"

(Behrami v. France (1999), admissibility decision)

While this case is distinguishable from the Yusuf and Kadi litigation, it strongly suggests that a UNSC Resolution is not reviewable against the ordinary standards of the ECHR, which is the reading that I have advocated all along. (The Dutch Supreme Court ruling continues by considering the ius cogens angle, but that is a different story.)

So if the ECtHR is so hesitant about claiming jurisdiction over UNSC Resolutions, why wasn't the ECJ? The answer? Because they said so.