*This post was originally published on the EJIL:Talk! Blog on 12 December 2022 available at: https://www.ejiltalk.org/possible-implications-of-the-dutch-mh17-judgment-for-the-netherlands-inter-state-case-before-the-ecthr/ 

On 17 July 2014, Malaysia Airlines flight 17 (MH17) from Amsterdam to Kuala Lumpur was shot down above eastern Ukraine, resulting in the death of all 298 persons on board. Eight years later, the victims’ next of kin as well as their respective governments are pursuing multiple avenues to achieve justice and accountability and establish the truth. Due to the fact that most of the persons on board flight MH17 were Dutch nationals, the Netherlands has taken a prominent position in this pursuit. One of the Netherlands’ efforts is the prosecution of four individuals part of the separatist Donetsk People’s Republic (DPR) in eastern Ukraine. Another is the inter-State application against the Russian Federation before the European Court of Human Rights.

On 23 November 2021, the District Court of The Hague delivered its summary judgment in the case filed by PAX, Stop Wapenhandel and the Dutch section of the International Commission of Jurists against the Dutch government’s decision to allow the export of military goods and technology to Egypt. The decision exposes certain inconsistencies between the English and the Dutch version of the assessment criteria in the EU Common Position. Could the English wording make a difference on appeal?

The conflict in the Syrian Arab Republic, one of the most devastating and barbaric in the world today, has been ongoing for over a decade. Many actors have committed atrocities and continue to do so with virtual impunity. A potential avenue for establishing the responsibility of Russia and Turkey for gross human rights abuses committed in Syria is the European Court of Human Rights. Although several individual applications have been lodged, they seem to have been rejected – most likely because the applicants failed to exhaust all domestic remedies. But would such applications always be considered inadmissible?

Last November, the European Parliament and Council reached a provisional agreement for the EU’s Recast Dual-Use Regulation, paying closer attention to export controls for surveillance technologies and human rights. This is a welcome development: a recent report by Amnesty International on the export of digital surveillance technologies from EU Member States to China has illustrated once again how outdated the 2009 Dual-Use Regulation has become. But will the new Regulation manage to close the gap?

On 25 March 2020, the UK Supreme Court delivered judgment in the case of Elgizouli v Secretary of State for the Home Department. The case concerns the appeal brought by the mother of one of the members of an IS terror cell dubbed ‘The Beatles’ against the Home Secretary’s decision to provide mutual legal assistance to the US that could facilitate a trial resulting in the death penalty. Reversing the judgment of the Divisional Court, the Supreme Court unanimously found that the UK’s decision to share the evidence with the US was unlawful.

Dutch development bank FMO was involved in financing the Agua Zarca project on the Gualcarque river in Honduras. The river and the surrounding land are sacred to the indigenous Lenca people, and the project has been met by continued protests. The situation gained increased international attention after local activist Berta Cáceres was murdered in her home on the night of 2-3 March 2016. In May 2018, members of her family and NGO announced they would pursue a case against FMO for its role in the human rights violations against the community.

On 20 June 2019, the London Court of Appeal delivered its judgment in the appeal of the Campaign Against Arms Trade against the Divisional Court’s judgment of July 2017 on the continued export of arms to Saudi Arabia for use in the ongoing conflict in Yemen. Unlike the Divisional Court, the Court of Appeal found it was irrational and therefore unlawful for the Secretary of State for International Trade to proceed as he did, namely to not take Saudi Arabia’s past and present record of respect for international humanitarian law into consideration.

The European Court of Human Rights (ECtHR) has dealt with the operation of CIA ‘black sites’ in certain European countries and the subsequent renditions of terrorist suspects from these countries to other places controlled by the CIA in a series of lengthy judgments.

It exceeds the scope of this blog to deal with all aspects of this interesting ECtHR case law. Instead, we will focus on three aspects which are of interest when analysing these cases from a secondary liability perspective.

Three of Damen’s Stan Patrol 1605s, including the Talil 267, are used by the Libyan coastguard. Footage and photos show that machine guns are attached to the vessels’ mountings. The Dutch government permitted these vessels to be transported without a licence, classifying them as non-strategic goods and therefore not subject to export authorisation. Remarkably, Damen was eager to arm the vessels in 2014. In accordance with the EU Common Position and the UN arms embargo, the government denied permission. Now it appears the Dutch vessels are indeed armed and have been used in violent, high-risk operations against vulnerable people at sea.

On Tuesday 27 November 2018, Ms. Joana Nabuco gave a presentation at the annual United Nations Business and Human Rights Forum entitled ‘New insights? When causation, contribution, and direct link overlap: UNGP implementation in “complex complicity” scenarios’. In order to illustrate such a scenario, Ms. Nabuco took Brazil’s Suape Industrial Portuary Complex (‘Suape Port’) as a case study.