Common use of Case Studies Clause in Contracts

Case Studies. introduction52 The first case study concerns the genocide committed by Bosnian Serb forces in the summer of 1995, involving the killing of thousands of Bosnian men who had gathered at the Eastern Bosnian enclave of Srebrenica.53 Though the enclave had been designated a ‘safe area’ by the UNSC, acting under Chapter VII of the UN Charter, UNPROFOR’s Dutch battalion (‘DUTCHBAT’) proved unable to protect it. In 2007, in Mothers of Srebrenica, survivors of the genocide sued the UN and the State of the Netherlands before the Dutch courts, holding them partly responsible for the fall of the enclave and the ensuing genocide. The Dutch courts held that the UN enjoyed immunity from jurisdiction. Before the ECtHR, the claimants argued that the Netherlands had breached Article 6(1) of the ECHR on account of its courts having upheld the UN’s immunity. In 2013, the ECtHR declared the application inadmissible. In its contemporary case law concerning the jurisdictional immunity of international organisations, the ECtHR has consistently found that Article 6(1) of the ECHR has not been breached. Mothers of Srebrenica, however, is the only case before the Court in which alternative remedies were not available to the claimants. The ECtHR left unresolved in that case whether it deemed the UN to have breached Section 29 of the General Convention. In the immunity proceedings in Mothers of Srebrenica, the Dutch Supreme Court had found that the lack of alternative remedies was at odds with Section 29(a) of the General Convention. By implication, therefore, according to the Supreme Court, the dispute had a ‘private law character’ in terms of that provision. The second case study concerns allegations of lead poisoning due to soil contamination in camps for internally displaced persons in Kosovo. These camps, set up since 1999, were administered by UNMIK, the UN’s mission in Kosovo, which was responsible for the interim administration of Kosovo under a UNSC mandate. Former residents of the camps alleged that UNMIK had violated their human rights, including their right to life. In 2006, in N.M. and Others, the complainants submitted claims under, what the UNMIK administrative framework referred to as, the ‘UN Third Party Claims Process’, which involved the settlement of third-party claims by a claims commission. In 2011, apparently without such a commission having been established, the UN Legal Counsel declared the claims ‘non-receivable’ for lack of a private law character. The complainants then pursued their case before the Human Rights Advisory Panel (‘HRAP’). In 2016, the HRAP concluded that UNMIK had 52 In the context of the UN’s implementation of Section 29(a) of the General Convention, subsection 3.3.3 of this study provides more extensive introductions to these case studies, together with references, including the main commonalities and differences.