¹ Stichting Mothers of Srebrenica v. Netherlands, App. No. 65542/12 (Eur. Ct. H.R. June 11, 2013) [hereinafter Decision]. Judgments and decisions of the Court are available at http://hudoc.echr.coe.int.

² The chamber also found that the first-named applicant—Stichting Mothers of Srebrenica, a Dutch foundation that was “set up for the express purpose of promoting the interests of surviving relatives of the Srebrenica massacre”—lacked standing to lodge an application concerning the alleged violations of the Convention. Decision, paras. 116–17. Article 34 of the Convention requires that applicants be the “victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the Protocols thereto.” European Convention for the Protection of Human Rights and Fundamental Freedoms, Art. 34, Nov. 4, 1950, ETS No. 5, 213 UNTS 222. As with previous applications by nongovernmental organizations that were established “with no other aim than to vindicate the rights of alleged victims,” the Court found that Stichting Mothers of Srebrenica was not a “victim” within the meaning of Article 34 as it “ha[d] not itself been affected by the matters complained of.” Decision, paras. 115–16. Consequently, its application hadto be rejected in accordance with Article 35(4) of the Convention. This decision, though, had no effect on the Court’s further consideration of the case, because it was uncontested that the individual applicants, who alleged the same violations of the Convention as Stichting Mothers of Srebrenica, had standing before the Court.

³ SC Res. 743, para. 5 (Feb. 21, 1992).

⁴ Convention on the Prevention and Punishment of the Crime of Genocide, Dec. 9, 1948, 78 UNTS 277.

⁵ Article 105, paragraph 1 of the Charter provides: “The Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfilment of its purposes.”

⁶ Article II, section 2 of the General Convention, Feb. 13, 1946, 1 UNTS 16, provides in pertinent part: “The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity.”

⁷ Mothers of Srebrenica Ass’n v. Netherlands, Dist. Ct. The Hague July 10, 2008, No. 07-2973; App. Ct. The Hague Mar. 30, 2010, No. 200. 022.151/01; Sup. Ct. Neth. Apr. 13, 2012, No. 10/04437, at http://www.asser.nl/default.aspx?site_id=36&level1=15248&level2=&level3=&textid=39956 (Eng. trans.).

⁸ Quoting Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, Advisory Opinion, 1999 ICJ Rep. 62, para. 66 (Apr. 29).

⁹ Quoting id. Article VIII, section 29 of the General Convention, supra note 6, provides in pertinent part: “The United Nations shall make provisions for appropriate modes of settlement of: (a) disputes arising out of contracts or other disputes of a private law character to which the United Nations is a party ....”

¹⁰ Jurisdictional Immunities of the State (Ger. v. It.; Greece Intervening) (Int’l Ct. Justice Feb. 3, 2012) [hereinafter Jurisdictional Immunities].

¹¹ Waite v. Germany, 1999-I Eur. Ct. H.R. 393; Beerv. Germany, App. No. 28934/95 (Eur. Ct. H.R. Feb. 18, 1999) (reported by August Reinisch at 93 AJIL 933 (1999)).

¹² Because the applicants raised no other claims concerning Article 13, the Court did not consider its jurisprudence under that provision. Decision, para. 177.

¹³ See infra text at and note 29.

¹⁴ The Court also rejected the applicants’ claim that the Dutch Supreme Court’s refusal to seek a preliminary ruling from the European Court of Justice (on the issue of “the interrelation between the jurisdictional immunity granted to the United Nations and the principle of effective judicial protection enshrined in European Union law”) was improperly based on “summary reasoning” in breach of Article 6. Decision, paras. 171, 173–75.

¹⁵ See generally Guglielmo Verdirame, The UN and Human Rights: Who Guards the Guardians? (2011); Cogan, Jacob Katz, The Regulatory Turn in International Law, 52 Harv. Int’l L.J. 321 (2011)Google Scholar.

¹⁶ Commission v. Kadi, Joined Cases C-584/10 P, C-593/10 P, & C-595/10 P (Eur. Ct. Justice July 18, 2013) (reported by Clemens A. Feinaäugle at 107 AJIL 878 (2013)); Joined Cases C-402/05 P & C-415/05 P, Kadi v. Council, 2008 ECR I-6351 (reported by Misˇa Zgonec-Rozˇej at 103 AJIL 305 (2009)).

¹⁷ Nada v. Switzerland, App. No. 10593/08 (Eur. Ct. H.R. Sept. 12, 2012).

¹⁸ See, e.g., Abdelrazik v. Canada (Minister of Foreign Affairs) (2009), [2010] 1 F.C.R. 267; Her Majesty’s Treasury v. Ahmed, [2010] UKSC 2, [2010] 2 A.C. 534. See generally, e.g., Pavoni, Riccardo, Human Rights and the Immunities of Foreign States and International Organizations, in Hierarchy in International Law: The Place of Human Rights 71 (de Wet, Erika & Vidmar, Jure eds., 2012)CrossRefGoogle Scholar; Tzanakopoulos, Antonios, Domestic Court Reactions to UN Security Council Sanctions, in Challenging Acts of International Organizations Before National Courts 54 (Reinisch, August ed., 2010)CrossRefGoogle Scholar.

¹⁹ Citing Jorgić v. Germany, 2007-III Eur. Ct. H.R. 263, the chamber noted that the prohibition of genocide in the Genocide Convention was a jus cogens rule and implicitly assumed that the obligation to prevent genocide (not just the obligation not to commit genocide) fell within that category and hence bound the United Nations. Decision, para. 157.

²⁰ Waite, supra note 11, para. 68; Beer, supra note 11, para. 58. On this line of cases, see August Reinisch & Ulf Andreas Weber, In the Shadow of Waite and Kennedy: The Jurisdictional Immunity of International Or ganizations, the Individual’s Right of Access to the Courts and Administrative Tribunals as Alternate Means of Dispute Settlement, 1 Int’l Org. L. Rev. 59 (2004); Reinisch, August, Privileges and Immunities, in Research Handbookonthe Law of International Organizations 132, 142– 46 (Klabbers, Jan & Wallendahl, Åsa eds., 2011)Google Scholar.

²¹ Indeed, the chamber’s reliance on the International Court’s judgment was remarkable, and its decision had the effect of bringing international organization immunity in line with sovereign immunity from foreign court jurisdiction.

²² E.g., W. Eur. Union v. Siedler, Cour de Cassation, Dec. 21, 2009, No. S.04.0129.F (Belg.), Int’l L. Domestic Cts. 1625 (in French), available at http://jure.juridat.just.fgov.be/pdfapp/download_blob?id pdf=F-20091221-7 (in French) (reported by Jan Wouters, Cedric Ryngaert, and Pierre Schmitt at 105 AJIL 560 (2011)).

²³ E.g., Bundesgericht [Federal Supreme Court] [BGer] July 12, 2010, 136 Entscheidungen Des Schwei Zerischen Bundesgerichts [BGE] III 379 (Switz.) (upholding the immunity of the Bank of International Settlements against an Article 6 challenge).

²⁴ See Behrami v. France, Joined App. Nos. 71412/01 & 78166/01 (Eur. Ct. H.R. May 2, 2007) (reported by Pierre Bodeau-Livinec, Gionata P. Buzzini, & Santiago Villalpando at 102 AJIL 323 (2008)).

²⁵ Because the Court’s analysis was limited to Security Council resolutions under Chapter VII, questions about the precedential scope of the decision will remain.

²⁶ Though it is possible to prevent a state from shifting attribution, see infra note 29, the Court’s precedents create confusion in this area. Compare Behrami, supra note 24, with Al-Jedda v. United Kingdom, App. No. 27021/08 (Eur. Ct. H.R. July 7, 2011), 50 ILM 950 (2011) (reported by Misša Zgonec-Rozžej at 106 AJIL 830 (2012)).

²⁷ Indeed, indirect attacks on the acts of international organizations by challenging state implementation of the directives of organizations or by seeking to hold states liable for acts taken under the authority of an organization can restrict the independence of organizations just as much as direct challenges. In this way, whereas upholding the immunity of international organizations in cases like this is important symbolically and monetarily, in practice a successful defense by an organization of its immunity may be less consequential than it appears, as organizations depend on states to effectuate their decisions. Thus, if the Netherlands can be held liable for Dutchbat’s failures, then future UN operations could be impaired because states might be unwilling to contribute troops for fear of liability or may insist that the United Nations agree to indemnify them should they be required to pay damages (even absent a finding of UN responsibility or dual responsibility).

²⁸ Report of the Secretary-General Pursuant to General Assembly Resolution 53/35: The Fall of Srebrenica, para. 501, UN Doc. A/54/549 (Nov. 15, 1999).

²⁹ Netherlands v. Mustafić, No. 12-03329 (Sup. Ct. Neth. Sept. 6, 2013); Netherlands v. Nuhanović, No. 12- 03324 (Sup. Ct. Neth. Sept. 6, 2013), at http://www.rechtspraak.nl/Organisatie/Hoge-Raad/Supreme-court/Summaries-of-some-important-rulings-of-the-Supreme-Court/Pages/default.aspx (Eng. trans.). In these cases, there was a basis for Dutch responsibility that could be argued to have been unique to these victims, and there was no finding of UN responsibility or dual responsibility. Thus, it is not certain that the applicants in Stichting Mothers of Srebrenica will be successful at the district court in holding the Netherlands responsible.