B. Factual Background

Before considering the Court of Appeal's legal analysis, it is worth providing a brief review of the factual context.

In an effort to protect civilians during the post-independence war in Bosnia and Herzegovina, the Security Council issued a series of resolutions in 1993 tasking the UN Protection Force (UNPROFOR) with protecting designated ‘safe areas’.Footnote ⁵ Among these ‘safe areas’ was the Muslim enclave in and around Srebrenica. In October 1993, the Dutch Government agreed to provide a battalion of the Dutch Airborne Brigade to serve in UNPROFOR, and in March 1994 the main force of Dutchbat deployed to the Srebrenica enclave under UN command. One company was stationed in the city; the others were quartered in the Potočari compound outside Srebrenica.

On 5 July 1995, General Ratko Mladić's Army of Republika Srpska (VRS) launched an attack on the Srebrenica enclave. On 11 July, the VRS took the city and the Dutchbat troops stationed there withdrew to the Potočari compound. This precipitated a mass exodus from Srebrenica, with 5,000 of the displaced persons admitted by Dutchbat into the compound and around 27,000 staying outside the compound in Potočari. That evening, UNPF command, in consultation with the Dutch Government, determined that Dutchbat and the displaced persons would have to be evacuated. (UNPROFOR was restructured into three separate forces in March 1995, with UNPF the new name for the overall command of the three forces and UNPROFOR referring only to the force in Bosnia and Herzegovina).Footnote ⁶ The Dutchbat commander, Lt. Col. Thom Karremans, immediately began discussing the evacuation of the displaced persons with Mladić. Over the following two days, the VRS removed all of the displaced persons outside and inside the compound via bus and truck, under the guise of facilitating the evacuation. Local UN employees with UN identity cards were allowed to stay in the compound and were to be withdrawn with Dutchbat.

The very last of the evictees to leave the compound into the custody of the VRS were the Mustafić and Nuhanović families. Rizo Mustafić had been working as an electrician for Dutchbat, having been seconded to the battalion by the municipal administration of Srebrenica. He expressed his wish that he and his family stay in the compound with the battalion. However, Mustafić did not have a UN identity card, so he and his family were forced to leave. The Nuhanović family also wished to stay. Hasan Nuhanović was employed by the UN as an interpreter for the UN Military Observers seconded to UNPROFOR and part of Dutchbat. He was considered a UN employee for the purposes of Dutchbat withdrawal, but his status did not extend to his parents, Ibro Nuhanović and Nasiha Nuhanović-Mehinagić, or his younger brother, Muhamed Nuhanović. The Dutchbat commanders ultimately allowed Ibro Nuhanović to stay because he had been part of a committee of Srebrenica civilians that had held consultations with Mladić. However, it evicted Muhamed and Nasiha, and Ibro decided to leave the compound with them. Hasan Nuhanović remained with Dutchbat.

Rizo Mustafić and the three evicted members of the Nuhanović family were subsequently killed by Bosnian Serb forces or paramilitaries, as were most of the ‘able-bodied’ (16–60–year-old) males who were transported from the Potočari compound and surrounding area by the VRS.

Hasan Nuhanović and the relatives of Rizo Mustafić sued the Dutch state for its part in the four deaths. Prior to the recent judgment, the actions of Dutchbat had already made a significant political impact in The Netherlands. In 2002, the government of then Prime Minister Wim Kok resigned after a report commissioned by the government held it partly to blame for Dutchbat's failure to protect the civilian population of Srebrenica.Footnote ⁷ However, the recent Court of Appeal decisions are the first judicial rulings to hold the Dutch state legally responsible for civilian deaths in the genocide.

C. The Wrongdoing

In analysing the alleged wrongful conduct, the first issue facing the Court was the question of applicable law. The Court held that the alleged wrongful act was to be assessed under the law of Bosnia and Herzegovina, from which Dutchbat was not released and against which no immunity applied.Footnote ⁸ However, the Court found that pursuant to the Bosnian Constitution, treaties to which Bosnia and Herzegovina is party have ‘direct effect and constitute a part of the law of Bosnia and Herzegovina’.Footnote ⁹ On this basis, the Court held that it could apply the relevant provisions of the ICCPR (Articles 6 and 7) directly.Footnote ¹⁰

More interestingly, the Court also found the authority to

Thus, without addressing the thorny issue of the extraterritorial effect of the relevant treaties (elaborated anew days later with respect to the ECHR by the Grand Chamber in Al-Skeini v United Kingdom),Footnote ¹² the Court was able to apply human rights standards to the extraterritorial acts of the state pursuant to a combination of local domestic implementation and customary international law. The Court did not give any indication that the reasoning from customary international law would apply to any rights other than the right to life and the right to humane treatment (the rights it termed ‘fundamental legal principles of civilized nations’). Moreover, even with respect to those particular rights, the Court did not provide details of the state practice and opinio juris on which it relied to hold that the corresponding duties apply abroad as a matter of customary international law. For these reasons, it is difficult to say whether the Court's use of customary international law to circumvent concerns about the extraterritoriality of human rights treaty obligations will prove influential in other contexts.

In addition to applying international human rights law via the avenues of Bosnian constitutional incorporation and customary international law, the Court also applied relevant domestic Bosnian law to Dutchbat's actions.Footnote ¹³ The Court avoided considering the more politically incendiary argument that The Netherlands had violated Article 1 of the Genocide Convention by failing to prevent the killings in question, noting that the above legal standards were sufficient to find in the plaintiffs' favour on the relevant claims.Footnote ¹⁴

In applying the above legal standards, the Court defined the battalion's failings in narrow terms, giving little indication as to whether the holdings in these two cases might presage the success of similar litigation in the future.

The plaintiffs had alleged several ways in which Dutchbat's actions triggered liability for the deaths in question. Those with broadest potential impact beyond the current case included the claims that ‘the State failed to take action when Muhamed Nuhanović and Ibro Nuhanović were separated from their mother/wife, which took place before the eyes of the Dutch battalion’Footnote ¹⁵ and that ‘the State did not report the separation between the men and women and the other violations of human rights that it observed and that were a harbinger for genocide.’Footnote ¹⁶

More narrowly, the plaintiffs claimed, ‘the State refused to include Muhamed Nuhanović in the list of local personnel, and as a result the State did not include him in the evacuation of the Dutch battalion’ and ‘the State sent Muhamed Nuhanović, and therefore Ibro Nuhanović, away from the compound.’Footnote ¹⁷ The Court found the State liable for the three male deaths on these narrower grounds, and therefore declined to consider the question of whether the battalion had a duty to intervene when the able-bodied males were being separated visibly from the rest of the displaced population outside the compound.Footnote ¹⁸ This obviously limits the relevance of the rulings with respect to litigation regarding the deaths of the many displaced persons who never entered the Potočari compoundFootnote ¹⁹ or who left it voluntarily, and with respect to potential litigation regarding the failure of peacekeepers to protect civilians in other contexts.

Moreover, it is not certain that relatives of even those other able-bodied men that were evicted from the compound could replicate the success of the plaintiffs in this case. The Court held that Dutchbat's action in evicting the men triggered liability for the three deaths because incidents of mistreatment or killing of able-bodied male displaced persons by the VRS outside the compound were known by Dutchbat commander Karremans or his deputy Rob Franken and were so ‘alarming’ that the commanders ‘reasonably could not have drawn any other conclusion than that the able-bodied men that were going to leave the compound from that moment to be “evacuated” by the Bosnian Serbs, ran the real risk of being killed or at least of being subjected to inhuman treatment’.Footnote ²⁰ These alarming incidents accumulated over the period from 12 July to the afternoon of 13 July,Footnote ²¹ creating sufficient warning of the danger to able-bodied males ‘at the latest’ shortly before the Nuhanović and Mustafić families were evicted in the evening of 13 July.Footnote ²²

This seems to count against the applicability of the Court's reasoning to possible litigation involving other evictees, because by the time the Nuhanović and Mustafić families were evicted, ‘[a]ll other refugees had left the compound.’Footnote ²³ The Court emphasized this timing difference in stating explicitly that it should not be misinterpreted as making any determination with respect to the Dutch state's liability for the deaths of any of the other male evictees.Footnote ²⁴ On the other hand, a number of the ‘alarming incidents’ listed by the Court occurred on 12 and early 13 July,Footnote ²⁵ suggesting that there may be a fairly strong basis for suits against The Netherlands regarding the deaths of able-bodied males told to leave the compound against their will in the afternoon of 13 July. The number of men in this category cannot be determined with great precision, particularly since the question of whether a given departure was voluntary requires individualized analysis. Nonetheless, there is reason to believe the number is not insignificant. The Court of Appeal found that 239 able-bodied men had been in Dutchbat's custody in the compound,Footnote ²⁶ and the number may actually have been considerably higher.Footnote ²⁷ Many, though not all, of these individuals were killed in the genocide.Footnote ²⁸ Moreover, whereas the displaced persons outside the compound were taken into Bosnian Serb custody on 12 July and in the morning of 13 July, those in the compound were not transferred to the VRS until the afternoon of 13 July.Footnote ²⁹ As such, the Court's reasoning in Nuhanović and Mustafić-Mujić may well be applicable to the deaths of at least some of the other victims of the Srebrenica genocide.

Having relied on Dutchbat's role in evicting the men to establish liability, the Court explained that although Nuhanović's father was not forced to leave the compound and so was not wronged directly, his ‘death may be considered to be the result of the wrongful acts with respect to Muhamed and therefore may be attributed to the State. After all, the Court deems it understandable and predictable that, under the given circumstances, Ibro would choose to go along with his minor son.’Footnote ³⁰ The claim regarding the death of Nasiha Nuhanović-Mehinagić was quickly dismissed on the grounds that ‘being a woman she had nothing to fear from the Serbs’, so there was no reason that Dutchbat should have kept her in the compound.Footnote ³¹

The fact that the Nuhanović and Mustafić families left last also relieved the Court of considering the relevance of Dutchbat's limited food, water, and other resources because by the time of the finalization of the Nuhanović and Mustafić evictions, the issue facing Dutchbat was whether to keep the two extra men, not whether to keep the entire population of able-bodied males that had been in the compound.Footnote ³²

A final point worthy of note with respect to the wrongdoing is the Court's finding that the battalion's duty to keep the Nuhanović and Mustafić families was not nullified by the possibility that doing so carried some risk to Dutchbat members. Specifically, the Court held that ‘considering the great interests’ at stake for the victims, the ‘possible risks’ to Dutchbat associated with taking them with the battalion as it withdrew ‘in reasonableness should not have resulted’ in the failure to do so.Footnote ³³ Whether the battalion had a duty to take the far greater risk of intervening with force in order prevent the genocide is, of course, a more complicated question and one the Court avoided answering.

D. Attribution

The Court of Appeal's decision with respect to attribution is perhaps the most important aspect of the two judgments. The District Court had attributed the impugned conduct of Dutchbat exclusively to the UN on the grounds that it had ‘operational command and control’ over the peacekeeping force and the state had not acted to negate that control by ‘cutting across’ the UN command structure or withdrawing Dutchbat from the structure.Footnote ³⁴ Elaborating this standard of attribution, the District Court explained:

Presumably in an effort to avoid this framework and/or the ‘ultimate authority and control’ standard articulated by the Grand Chamber of the European Court of Human Rights in Behrami and Saramati,Footnote ³⁶ the plaintiffs argued before the Court of Appeal that attribution should be determined as a matter of Bosnian law.Footnote ³⁷ The Court rejected this argument, finding attribution in such circumstances to be solely a matter of international lawFootnote ³⁸ and reasoning in the alternative that in the absence of Bosnian legal provisions on the issue, the gap would anyway be filled by international law.Footnote ³⁹

However, departing from both the District Court judgments and the decision in Behrami and Saramati, the Court of Appeal identified the international law standard of attribution to be ‘effective control’. Two days later, the Grand Chamber granted the ‘effective control’ rule further jurisprudential authority in Al-Jedda.Footnote ⁴⁰ In several respects, the Court of Appeal's analysis is more satisfying in this regard. The first relevant paragraph reads as follows:

Two things are worthy of note here. First, unlike the Grand Chamber in Al-Jedda, which equivocated as to whether the ‘effective control’ test or the ‘ultimate authority and control’ test applies,Footnote ⁴² the Court of Appeal is categorical in identifying ‘effective control’ as the applicable rule of attribution with respect to the conduct of state organs or agents placed at the disposal of an international organization.

Second, on its face, the Court's articulation of the ‘effective control’ rule seems to depart from the text of the cited article of the Draft Articles on the Responsibility of International Organizations. What is now Article 7 states that the conduct of the seconded agent or organ ‘shall be considered under international law an act of the [receiving] organization if the organization exercises effective control over that conduct’.Footnote ⁴³ The Court of Appeal instead asks, ‘which of both parties [the contributing state and the receiving organization] has “effective control” over the relevant conduct.’Footnote ⁴⁴ One might read Article 7 as adopting a presumption that the actions of peacekeepers are attributable to one of the two entities (the State) unless the other entity (the international organization) usurps responsibility by virtue of its effective control.Footnote ⁴⁵ Rejecting such a default presumption, the Court of Appeal instead held that the effective control analysis applies equally to both entities—the question is which of the two exercises effective control. The Court noted the difference but dismissed it quickly, stating only that ‘it is assumed’ that the effective control criterion applies to both the receiving international organization and the contributing state.Footnote ⁴⁶

The Court of Appeal's ‘assumption’ here is, in my view, entirely correct.Footnote ⁴⁷ Despite the potentially misleading wording of Article 7, this is the approach the ILC itself seems to endorse. In its commentary on Article 7, the Commission finds, ‘the decisive question in relation to attribution of a given conduct appears to be who has effective control over the conduct in question.’Footnote ⁴⁸ Confirming that this is the approach it understands to be codified in the article, the Commission adds ‘The criterion for attribution of conduct either to the contributing State or organization or to the receiving organization is based according to article 7 on the factual control that is exercised over the specific conduct.’Footnote ⁴⁹ Moreover, in discussing circumstances in which the conduct might be attributed to the contributing state rather than the receiving organization, the Commentary asserts, ‘Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect.’Footnote ⁵⁰ It seems fairly clear, then, that the Court of Appeal correctly restated the test provided in the Draft Articles.

Although this may appear to be a relatively minor point, it is in fact crucial to understanding the proper meaning of ‘effective control’. The necessary implication of an interpretation that takes the decisive question to be ‘which of both parties has “effective control” over the relevant conduct’ is that having ‘effective control’ over conduct cannot be limited to issuing direct orders resulting in that conduct. Much unlawful action occurs in the absence of superior orders or even in direct breach of such orders. Clearly, the ILC does not intend that such conduct be attributed neither to the contributing state nor to the receiving international organization. In its commentary on Article 8, the Commission rejects the option of leaving unattributed any action taken in an organ's or agent's official capacity, reasoning that ‘[d]enying attribution of conduct [to the relevant international organization] may deprive third parties of all redress, unless conduct could be attributed to a State or to another organization.’Footnote ⁵¹ Moreover, in its commentary on Article 7, the Commission states that the effective control test ‘does not concern the issue of whether a certain conduct is attributable at all to a State or an international organization, but rather to which entity—the contributing State or organization or the receiving organization—conduct has to be attributed.’Footnote ⁵² The possibility of leaving official conduct unattributed is assumed (correctly) to be fundamentally untenable.

In sum, in the kinds of contexts to which Article 7 applies, the impugned conduct must be attributed to at least one of the two entities, and that attribution must be based on an analysis of which of the entities has effective control over the conduct. This is true even though that conduct will often have occurred independent of any direct order, or even in contravention of orders from above. Rather than applying a default attribution when the conduct does not occur pursuant to direct orders from one of the entities, this interpretation of the standard requires a deeper analysis as to the different forms of control exercised by the UN and the state with respect to such conduct (which, by definition, was not controlled directly by superior orders). It therefore demands considering the entities' respective capacities to lawfully prevent the wrongful conduct. This, after all, is the control that might actually have had an effect on that conduct. The Court recognized this implication:

As noted by the ILC in its final Commentary to the Draft Articles, in defining ‘effective control’ so as to include the power to prevent, the Court followed the approach I have advocated elsewhere.Footnote ⁵⁴ In the article cited by the ILC on this point (and by the Dutch Court on the general question of effective control), I argue for an interpretation whereby effective control ‘is held by the entity that is best positioned to act effectively and within the law to prevent the abuse in question’.Footnote ⁵⁵ I return to the Court's application of this ‘power to prevent’ (or, more accurately, ‘power to lawfully prevent’) standard below.Footnote ⁵⁶ Before turning to that issue, two other points must be addressed.

First, this understanding of ‘effective control’ diverges from the ‘effective control’ standard applied by the ICJ in the Nicaragua case, which seemed to equate the question of whether the United States had effective control over the human rights law and humanitarian law violations of the Nicaraguan Contras with the question of whether ‘the United States directed or enforced the perpetration of [those] acts’.Footnote ⁵⁷ The ICJ reaffirmed that test in the Bosnian Genocide case,Footnote ⁵⁸ although in this more recent decision, it did appear to leave some room for a notion of ‘effective control’ that extends beyond directing the impugned acts. Having explicitly adopted the Nicaragua test, the Court held:

The ‘or’ used in the italicized final clause of this passage was repeated throughout the judgment,Footnote ⁶⁰ suggesting that ‘effective control’ is, for the ICJ, distinct and separate from the mere giving of orders or directions. However, this distinction was not elaborated and it would be a significant and new development if the ‘power to prevent’ interpretation were applied to the attribution of the actions of irregular armed groups to States.

Nonetheless, to say that the ‘power to prevent’ interpretation of ‘effective control’ diverges from the understanding of ‘effective control’ established in Nicaragua is not to say that the application of the former approach to peacekeeping is inconsistent with the ICJ jurisprudence. On the contrary, there is good reason to think that the concept of ‘effective control’ applicable to situations such as those considered in the Nicaragua and Bosnian Genocide cases differs, and indeed ought to differ, from the ‘effective control’ standard applicable to peacekeeping (and other scenarios covered by Article 7 of the ILC Draft Articles). In Bosnian Genocide, the ICJ explained the danger of broadening the rule of attribution from that established in Nicaragua:

Although the ‘power to prevent’ interpretation is not at all equivalent to the ‘overall control’ test, it does provide for a broader standard of attribution than the Nicaragua standard. Crucially, however, the fundamental concern expressed in Bosnian Genocide regarding a broadening of that standard of attribution is significantly reduced in the context of UN peacekeeping or other scenarios falling under Article 7. This is because peacekeepers act on behalf of both their governments and the United Nations.Footnote ⁶² Thus, whereas the forces under consideration in Nicaragua and Bosnian Genocide had no de jure relationship to a state—and in particular no official relationship to the United States or the former Federal Republic of Yugoslavia, respectively—peacekeepers do have genuine de jure connections to both their home states and the United Nations. Indeed, it is this difference that undergirds the ILC's position in the commentary to Article 7, which asserts that ‘effective control’ has a different meaning in the two types of situation. The full paragraph (from which I have taken a shorter excerpt above) reads:

Thus, in insisting that the conduct must be attributed to either the receiving organization or the contributing State, the ILC consciously departed from the effective control standard applicable to the attribution of foreign militant groups to States. The ‘effective control’ principle provided in Article 7 was never intended to reflect the Nicaragua doctrine. In that sense, it would be a mistake to hold that the ‘power to prevent’ approach is fundamentally inconsistent with existing ICJ jurisprudence on the attribution of the acts of irregular armed forces to States.

A second point is worth noting before turning to the Dutch Court's application of the ‘power to prevent’ approach. In addition to upholding the standard of ‘effective control’ days before Al-Jedda, the Court of Appeal also prefigured the Grand Chamber's decision in that case by accepting the possibility of dual attribution, again correctly in my view.Footnote ⁶⁴ Specifically:

Here, too, the Court of Appeal's position is more satisfying than that of the Grand Chamber. While the latter implied the possibility of dual attribution in such contexts,Footnote ⁶⁶ the Court of Appeal stated that possibility explicitly. Moreover, unlike the Grand Chamber, which indicated a lingering preference for an ‘either/or’ standard of attribution (considering and rejecting attribution to the UN [not a party to the litigation] before attributing the relevant acts to the UK),Footnote ⁶⁷ the Court of Appeal cut straight to an assessment of whether the Dutch state had effective control over the conduct in question. This suggests that the fact that the conduct may be attributable to one entity is irrelevant to its potential attribution to the other.Footnote ⁶⁸

In its application of the ‘power to prevent’ interpretation of ‘effective control’, the Court of Appeal first emphasized the UN command structure under which Dutchbat operated.Footnote ⁶⁹ The battalion was subject to a UN chain of command running from UNPF Force Commander Lt. Gen. Bernard Janvier, through UNPROFOR HQ Commander Lt. Gen. Rupert Smith and his Deputy Commander Gen. Hervé Gobillard. In principle, Dutchbat was supposed to take orders exclusively from these commanders, not from the Dutch Government.

However, the Court of Appeal found that following the fall of Srebrenica an extraordinary situation arose in which the Dutch Government became more actively involved in decision making than would ordinarily be the case in a UN force. The Court explicitly distinguished this context from that which pertained in Behrami and Saramati.Footnote ⁷⁰ Once Srebrenica fell, the Dutch Government decided together with the UN that Dutchbat would be withdrawn from the peacekeeping mission.Footnote ⁷¹ This initiated a ‘transition period’ prior to the actual withdrawal ‘in which matters in Potocari were being completed [including] the aid to and the evacuation of the refugees’.Footnote ⁷²

The Court concluded that the Dutch Government:

Therefore, the Dutch Government possessed ‘effective control’ over the conduct of Dutchbat regarding the relevant evictions.Footnote ⁷⁵

Notably, the Court held that no order from the Dutch Government or from the UN required Dutchbat to evict the Mustafić or Nuhanović families or to cooperate with the VRS ‘evacuation’ once the risks to able-bodied males became apparent.Footnote ⁷⁶ The Dutch Government's ‘effective control’ therefore took the form of the ‘power to prevent’, rather than ‘direct control’ over the conduct in question.Footnote ⁷⁷

Overall, despite the mysteriousness of the ‘transition period’ on which it relies, the Court's application of the ‘power to prevent’ interpretation to the unusual facts before it is plausible. However, the Court could have reached the same conclusion via a simpler application of that interpretation of ‘effective control’. Doing so would have provided a more broadly applicable precedent, albeit one that would have required a more explicit departure from Behrami and Saramati—something the Court was understandably reluctant to doFootnote ⁷⁸ (raising the question of whether the reasoning would have differed had the decisions been authored after Al-Jedda).

Interestingly, the Court of Appeal does consider and grant some support to this simpler approach. Crucial here is General Gobillard's 11 July 1995 order requiring that Dutchbat ‘[t]ake all reasonable measures to protect refugees and civilians in your care.’Footnote ⁷⁹ The Court found that Dutchbat ‘acted contrary to [Gobillard's] instruction … [because] it had become clear at the latest at the end of the afternoon on 13 July 1995 that the evacuation of the men was (had become) life-threatening’.Footnote ⁸⁰ In this context, Gobillard's order to protect became the overriding command to which Dutchbat ought to have been responsive.Footnote ⁸¹

I have proposed elsewhere that when peacekeepers engage in wrongful conduct contrary to UN orders, those acts must be attributed to the troop-contributing State. Specifically, I argued that, ‘by disobeying [the UN Commander's] direct orders, peacekeepers undermine the bases for effective U.N. control. The acts fall beyond the reach of that control precisely because by their very nature they deny the efficacy of that control.’Footnote ⁸² UN control is undermined in such contexts because the UN Commander's authority typically includes only the authority to issue orders. Troop-contributing States retain exclusive authority to select the members of the troop contingent, to appoint contingent leaders and define the internal hierarchy, to train the troops (including training them in their legal responsibilities), to discipline and/or dismiss from the contingent those that breach orders, and to punish those that commit crimes. ‘Through acting with purpose and vigor along these dimensions, states can exert considerable effective control’ to ensure that peacekeepers comply with lawful orders.Footnote ⁸³ Indeed, these are the only mechanisms by which conduct in breach of direct orders can be prevented. Therefore, effective control with respect to that class of conduct rests exclusively with the State.Footnote ⁸⁴

Under this interpretation, the finding that the relevant Dutchbat conduct contravened Gobillard's order would be sufficient to attribute that wrongful action to the State, even if the Dutch Government had not been involved so intimately in operational decision-making regarding Dutchbat at that point. Although the Court did not rely exclusively on this approach, it seems to have accepted the basic theory. Abstractly, it found,

Concretely, the Court held,

The italicized sections emphasize the Court's correct understanding that when orders are contravened, the relevant levers of control over the conduct are those that impact discipline and obedience to lawful commands. Because in peacekeeping forces those levers are held exclusively by the State, it is the State that has the control most likely to be effective in preventing wrongdoing that contravenes UN orders.

Due to the broader applicability of this analysis, the Court's endorsement in this regard may prove to be of greater doctrinal consequence in elaborating the concept of ‘effective control’ than its more detailed examination of the Dutch Government's involvement in decision making during the ‘transition period’ prior to full withdrawal. In either event, however, the adoption of the ‘power to prevent’ approach to ‘effective control’ analysis represents an important advance on what has come before.