Zwanenburg, M.

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UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl)UvA-DARE (Digital Academic Repository)Dutch judgment on IHL compliance in Chora District, AfghanistanZwanenburg, M.Publication date2022Document VersionFinal published versionLink to publicationCitation for published version (APA):Zwanenburg, M. (Author). (2022). Dutch judgment on IHL compliance in Chora District,Afghanistan. Web publication or website, Articles of War - Lieber Institute.https://lieber.westpoint.edu/dutch-judgment-ihl-compliance-chora-district-afghanistan/General rightsIt is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s)and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an opencontent license (like Creative Commons).Disclaimer/Complaints regulationsIf you believe that digital publication of certain material infringes any of your rights or (privacy) interests, pleaselet the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the materialinaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letterto: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. Youwill be contacted as soon as possible.Download date:28 Nov 20231/7December 19, 2022Dutch Judgment on IHL Compliance in Chora District,Afghanistanlieber.westpoint.edu/dutch-judgment-ihl-compliance-chora-district-afghanistanby Marten Zwanenburg | Dec 19, 2022On 23 November 2022, the district court of the Hague handed down its judgment in a casebrought against the State of the Netherlands by relatives of persons killed during fighting inthe Chora district, Afghanistan in 2007 (Dutch language only). The case is unusual becauseit was decided on the basis of the domestic law of torts but revolved around allegedviolations of International Humanitarian Law (IHL).This post aims to provide an overview of the judgment. The post will focus mainly onallegations concerning the violation of IHL, and less on the part of the judgment that dealswith an alleged violation of the duty to investigate under Article 2 of the EuropeanConvention on Human Rights (ECHR). To that end, it will first provide some background onthe case and the events that led up to it. The post will then describe the judgment itself. It willconclude with a few observations.Background2/7This description of the background of the case is based on the district court judgment itself. Adetailed military analysis of the events in Chora by Major Wiltenburg and CaptainLeeuwenburg is also available.From August 2006 to August 2010 the Netherlands, together with Australia, contributed atask force to the NATO-led International Security Assistance Force (ISAF) in Afghanistan.The task force, named Task Force Uruzgan (TFU), deployed to the southern province ofUruzgan. It consisted of a so-called Provincial Reconstruction Team that was essentiallyconcerned with assisting the local Afghan authorities in maintaining and reinforcing theirauthority in the province, as well as a battle group. The battle group had as its disposal, interalia, a self-propelled howitzer (Panzerhaubitse, PzH).On 16 June 2007, a large force of Taliban fighters attacked Afghan National Police posts inthe Chora district in Uruzgan, including the town of Ali Shirzai which is the district center. Theattack pushed back three platoons of the TFU and Afghan security forces in the area andplaced them at risk of being overrun.During the day of 16 June, Dutch units had reported being fired on from the vicinity of the“quala” in which the claimants and their relatives lived, as well as from a point around 800meters from it. A quala denotes a typical Afghan residential complex that consists of severalbuildings surrounded by a wall.By the evening of 16 June, the TFU Commander had to decide whether to abandon Chora orstay and defend it. He chose the latter. During that evening and night (16-17 June), ISAF’sfixed wing and rotary wing aircraft and the PzH each fired on designated locations in theChora district, in which the majority of the Taliban forces were believed to be concentrated.This fire support was coordinated by the Chief Joint Fires of TFU.During the night of 16 – 17 June, ISAF aircraft destroyed the quala, killing several relatives ofthe claimants and injuring one of the claimants.The JudgmentThe claimants brought the case under the Dutch domestic law of torts based on civil law. Therelevant provision of domestic law is Article 6:162 of the Dutch Civil Code (DCC). The articlereads (in unofficial translation):1. A person who commits a tortious act against another person that can be attributed to him,must repair the damage that this other person has suffered as a result thereof.2. As a tortious act is regarded a violation of someone else’s right and an act or omission inviolation of a duty imposed by law or of what according to unwritten law has to be regardedas proper social conduct, always as far as there was no justification for this behaviour.3/73. A tortious act can be attributed to the tortfeasor if it results from his fault or from a causefor which he is accountable by virtue of law or generally accepted principles.Based on this article and relevant case law, a tort claim must meet five requirements to besuccessful including: unlawfulness; attributability; loss; causality; and relativity.The claimants submitted that the tort committed by the Netherlands consisted of the bombingof their houses in contravention of customary rules of IHL, namely the principle of distinction,the proportionality principle, and the duty to take precautions in attack. They also argued thatthe Netherlands violated article 2 of the ECHR because the investigation into the events wasnot sufficiently independent and adequate. This claim referred to the procedural obligation toinvestigate the (potential) use of deadly force which the European Court of Human Rights(ECtHR) has concluded flows from that article.The principal relief sought by the claimants was a declaration by the court that theNetherlands had acted unlawfully by bombing their houses and their relatives and by notconducting an effective investigation. They also sought reparations for the damages causedby that conduct.The court first dealt with the Netherlands’ argument that the claims were time-barred. Inprinciple, a claim for reparation under Dutch civil law is time-barred five years after the victimhas become aware of both the damage and the (potentially) responsible person. A victim canprevent the claim from becoming time-barred by notifying the responsible person withinthose five years of the claim. The court concluded that the majority of claimants had satisfiedthis requirement. For one claimant, this was not the case. With respect to this claimant, thecourt considered that the Netherlands did not have a legal interest in his claim being time-barred because the facts and circumstances relating to that claim were identical to those ofthe claim of the other claimants, and the latter claim was not time-barred. The specificcircumstances of this case therefore warranted an exception to the rule that statutes oflimitations must be strictly construed.The court then dealt with the claim on the merits. It considered that in this case the “act oromission in violation of a duty imposed what according to unwritten law has to be regardedas proper social conduct” referred to in Article 6:162 DCC, was to be given substance by therules of IHL. The court then focused specifically on the principle of distinction invoked by theclaimants. The court started by considering that it was agreed that the principle of distinctionapplied to Dutch forces during the fighting in Chora, which took place in the context of a non-international conflict in the sense of IHL.For the contents of this principle, the court looked to the relevant provisions of AdditionalProtocol I, which the court held constitute a codification of international customary law thatapplies in all types of conflicts. It then referred specifically to Articles 48, 52 and 57 of AP I.4/7The court stated that in answering the question whether the principle of distinction in IHL hasbeen respected, the applicable standard is if the commander could reasonably have decidedto use force, i.e. the reasonable commander test. It also underlined that only information thatwas available to the commander at the relevant time is to be taken into account.The court then recalled the claimants’ argument that the principle of distinction had not beenrespected sufficiently in attacking the quala. They submitted that the quala was a residentialcomplex from which no hostilities were carried out, such that it was not a military objective.They also submitted that there were insufficient facts and circumstances for CommanderTFU to reasonably conclude that the quala was a military objective.The court held that the claimants had in principle met their obligation to furnish facts(“stelplicht”) by claiming that the Taliban had not operated from the quala and that there wasno, or at any rate insufficient, basis on which to qualify it as a military objective.  It consideredthat it was for the Netherlands to give as precise an insight as possible into thecircumstances that led the responsible commander to qualify it as such.The Netherlands argued that there was sufficient basis to consider the quala as an enemyfiring position, such that it made an effective contribution to military action by its use. Itconsidered relevant that the quala was situated at a strategic location in relation to a chokepoint and a dry riverbed, which could serve as an alternative to the roads in Chora.The court took this into account, as well as the fact that early in the morning of 16 JuneDutch forces had noted that there were opposing forces around the quala, and that opposingforces fired from the vicinity of the quala around midday. The court considered that the factthat a Dutch platoon took fire from a location around 800 meters from the quala at the end ofthe afternoon of 16 June could not have reasonably contributed to qualification of the qualaas a military objective. The same was the case for the fact that possible Taliban fighters hadbeen spotted and engaged in the riverbed around 400 meters from the quala around thesame time.The court concluded that the only relevant circumstances were that there had been firingfrom the vicinity of the quala around 20 and 15 hours before the bombing respectively(referring to the events in the morning of 16 June). The court stressed that it did not followthat there had been fire from the quala. In addition, the presence of opposing forces aroundthe quala in the morning of 16 June and the firing from its vicinity around midday were tooremote in time from the bombing to justify the latter.The court then considered the argument by the Netherlands that it was likely that intelligencehad been available that one or more persons who were part of the Taliban commandstructure had been identified as being present in the quala. The Netherlands had referred inthat context to the fact that not all communication and intelligence had been recorded. Thecourt held that what the Netherlands had adduced about the possibility that there had been5/7intelligence was insufficiently concrete. According to the court, in a situation in which theNetherlands’ armed forces order an attack on a quala, it must be able to explain thecircumstances that justify the assumption that it was a military objective.On this basis, the court held that it must be assumed that the quala was bombed withoutrespecting the principle of distinction, and thus unlawfully. In this context the courtconsidered relevant that the conduct concerned was attributable to the Netherlands, whichhad full command over its own troops and was the red card holder (target approval authority)for those troops.In an obiter dictum, the court underlined that it did not express a view on whether thebombing constituted a war crime. Apart from the fact that a breach of IHL is not necessarily awar crime and such a determination is not for the civil courts to make, it emphasized that itdid not establish that the quala was a civilian object nor that at the relevant time there wasinsufficient information on the basis of which a reasonable commander could have qualifiedthe quala as a military objective. Rather, it only held that given the insufficiently motivedcontestation by the Netherlands, it must be assumed that at the time of the bombardmentthere were insufficient grounds on which a reasonable commander could regard the quala asa military objective.The court held that in view of its conclusion on the principle of distinction, there was no needfor a further appraisal of the alleged violation of the principle of proportionality or the duty totake precautions in attack.With respect to the claim based on Article 2 ECHR, the court noted that for the article to beapplicable, it was necessary to establish that the Netherlands exercised jurisdiction in thesense of Article 1 ECHR over the area in which the quala was situated. The court then—seemingly contradicting that narrow statement focusing only on control over an area—concluded that the parties agreed that neither of the accepted grounds for the exercise ofextraterritorial jurisdiction in the case law of the European Court of Human Rights (ECtHR)was applicable. These two grounds are effective control of an area and authority and controlover a person.The court then focused on a third ground that has been developed by the ECtHR in recentyears, namely special features of a particular case. The claimants had pointed to a numberof special features which they considered to establish jurisdiction, including the fact that theDutch public prosecutor had investigated the case, and that the Rome Statute of theInternational Criminal Court required such an investigation (an apparent reference to thecomplementarity principle in that Statute). The court concluded that there were insufficientspecial features to conclude that the Netherlands exercised jurisdiction in the sense of Article1 ECHR.6/7Based on the above, the court declared that the Netherlands had acted unlawfully in respectof the claimants and that it was responsible for the damage. The court rejected the Article 2ECHR claim.Observations As stated above, this post aimed to describe the judgment rather than offer an analysis.However, a few brief observations can be made. First, the case revolved around the burdenof proof. Essentially, the Netherlands was held responsible because it could not adequatelyrebut the claimant’s submission that there was insufficient basis in 2007 to qualify the qualaas a military objective.  This approach imposes a heavy burden on the State in terms ofrecording and preserving relevant information in a situation of armed conflict. It has beennoted that recording information is an important step in the context of the duty to investigatealleged violations of IHL.But it is also recognized that the scope of recording may depend on the feasibility of doing soin the circumstances. In this respect, the intelligence that the Netherlands argued was likelyavailable at the time is illustrative. The court noted that the Netherlands was put on notice bythe claimants within five years after the events, and therefore could and should have takeninto account the possibility that it might have to furnish information in a legal procedure.However, the court’s argument does not address the question exactly which information mustand can reasonably be recorded contemporaneously. In this sense, the judgment may be anillustration of the fact that IHL is better suited to being applied on the battlefield than in thecourtroom, as pointed out by Rogier Bartels elsewhere.Second, the case shows the “openness” of Dutch torts law to claims brought on the basis ofinternational law, including against the Dutch government. Earlier examples in Dutch caselaw are against the Netherlands relating to the fall of Srebrenica, decided mainly on the basisof alleged violations of human rights (but in which violations of IHL were also alleged). UnderDutch torts law, there is no comprehensive bar to cases brought against the governmentrelating to armed conflict, such as a doctrine of act of State.Third, it is noteworthy that the conclusion of the court focused on the IHL principle ofdistinction. The analysis by the court however seems to focus on the duty to take precautionsmore so than the principle of distinction. If the court would have framed the issue in that way,it could have avoided the awkward obiter dictum concerning war crimes.Finally, it is striking how little attention the judgment pays to the issue of attribution. The courtsimply notes that there is no discussion between the parties about the fact that theNetherlands retained full command over its own troops and was red card holder for thosetroops. The quala was destroyed by air assets, rather than by the PzH. Nowhere in thejudgment is clear that the air assets used were (exclusively) Dutch. In any event, air assetswere under the command of the NATO commander Regional South. At the time of the7/7fighting in Chora, this was a British Major-General. Against this background, it might havebeen expected that the court would devote more than one sentence to the question ofattribution.***Marten Zwanenburg is Professor of Military Law at the University of Amsterdam and at theFaculty of Military Sciences of the Netherlands Defence Academy. He has previously workedas a legal counsel for the ministries of Defence and Foreign Affairs of the Netherlands.  Photo credit: Gerben van Es/Ministerie van DefensieSUBSCRIBE  

Dutch judgment on IHL compliance in Chora District, Afghanistan

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Dutch judgment on IHL compliance in Chora District, Afghanistan

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