Killings at Srebrenica, Effective Control, and the Power to Prevent Unlawful Conduct

Abstract

In an important advance in the law of international responsibility, two Hague Court of Appeal judgments on the human rights failures of Dutch UN peacekeepers during the Srebrenica genocide adopted the power-to-prevent standard of attribution for the first time. This piece examines three aspects of the judgments – their unique approach to the question of human rights extraterritoriality, their avoidance of the so-called “responsibility to protect,” and the theory under which they attributed the human rights failings of the battalion to the Netherlands, rather than the United Nations. On the third point, the Court adopted the standard of attribution proposed in my Translating the Standard of Effective Control into a System of Effective Accountability (below). In this piece, I elaborate further the contours of the rule I had advocated in that earlier article and develop its legal and normative roots. In particular, I emphasize the equal application of the effective control analysis to both the sending state and the receiving organization, argue that this necessitates understanding effective control as preventive control, and explain why this is the normatively and legally optimal interpretation of the International Law Commission’s work on international responsibility.