By Professor Otto Spijkers

25 years later: Questions of legal responsibility for Srebrenica 

July 11, 2020 - 10:51

On July 11, 2020, exactly 25 years have passed since the genocide in Srebrenica happened. In 1995, Bosnian Serb soldiers killed more than eight thousand Bosnian Muslim men in just a few days, while a United Nations (UN) peacekeeping force of Dutch soldiers was there to protect these men. This makes the Srebrenica genocide also a dark page in Dutch history.

In what follows, I describe briefly what happened, and say something about the role of (international) law and the courts in dealing with questions of Dutch State liability for what happened.

Let me begin with an overview of the facts. The breakup of the Socialist Federal Republic of Yugoslavia (SFRY) began in the 1990s. In 1991, both Slovenia and Croatia declared their independence from Yugoslavia. To maintain the peace, the United Nations Protection Force (UNPROFOR) was established (see UN Security Council Resolution 743 (1992), adopted 21 February 1992). . When Bosnia Herzegovina also issued a declaration of independence, the Serbs and Muslims in Bosnia began to fight each other. Many Muslim civilians fled to Srebrenica, a town in eastern Bosnia, to shelter from the violence of the war. The town was situated in a valley, surrounded by mountains, where the Bosnian Serb Army was stationed. Approximately 40,000 civilians found themselves trapped in the tiny town, with not enough food. In 1993, UNPROFOR Commander Philippe Morillon went to Srebrenica himself. He spoke to a large crowd of frightened and starving civilians, and he tried to reassure them: “you are now under the protection of the UN forces”. 

The UN had to act on this promise, which was made in the UN’s name. It thus designated Srebrenica as a “safe area”. This was a new concept. The town was supposed to be protected by the peacekeepers of UNPROFOR. If needed, they could call upon the North Atlantic Treaty Organization (NATO) to conduct airstrikes. Also, a weapons embargo was imposed on the enclave and its immediate surroundings (see UN Security Council Resolution 819 (1993), adopted 16 April 1993). 

“It is important to keep in mind that the entire international community failed to provide adequate protection to the people trapped in these so-called “safe areas” in the former Yugoslavia, including the “safe area” of Srebrenica. When the UN asked for states to volunteer and send troops, most states did nothing.”But it all went horribly wrong. First, some of the Dutch peacekeepers were taken hostage by the Bosnian Serbs and attached to military targets, which made NATO airstrikes impossible. And then in July 1995, Bosnian Serbs took the enclave of Srebrenica. The civilians fled from the town to UNPROFOR’s compound in nearby Potočari From there, women and children were transported to safety in buses. The Muslim men of military age were killed by the Bosnian Serbs.

Surviving relatives believed that the Dutch peacekeepers could and should have done more to prevent the genocide from occurring. And thus, three cases were instituted against the State of the Netherlands at the Dutch court. I will now briefly describe these three cases.

Hasan Nuhanović was an interpreter, working for the United Nations Military Observers. In this capacity, he provided assistance to “Dutchbat” (this is the name commonly given to the Dutch battalion of UN peacekeepers). After the fall of the enclave, Hasan Nuhanović was allowed by the Bosnian Serbs to remain with the peacekeepers of Dutchbat. Hasan’s father had some formal relationship with Dutchbat, and for that reason, he could also have remained with Dutchbat. However, he decided to leave with his other son, who was not permitted to stay with Dutchbat because he was not working for them. The father’s decision to accompany his other son was a heroic act; that cost him his life. Hasan Nuhanović’s father and brother were among the thousands of Bosnian Muslims killed by the Bosnian Serbs. Hasan Nuhanović brought legal proceedings in the Dutch court, holding The Netherlands legally responsible for Dutchbat’s failure to protect his father and brother from the Bosnian Serbs. He believed this failure constituted a wrongful act, attributable to the State of the Netherlands. The court agreed with him. (See Nuhanović v. the Netherlands, Supreme Court, 6 September 2013.) 

Rizo Mustafić was working as an electrician for Dutchbat. For that reason, he was on the list of local staff members who were permitted to stay with Dutchbat. However, because of some administrative confusion, Dutchbat was not aware that his name was on the list. This led to his death at the hands of the Bosnian Serbs. His surviving relatives instituted legal proceedings against the Netherlands, holding the latter responsible for not doing enough to protect Rizo’s life. Again, the court agreed. (See Mustafić v. the Netherlands, Supreme Court, 6 September 2013.)

The Mothers of Srebrenica is a foundation, established under Dutch law, which purports to represent the interests of the surviving relatives of those killed at Srebrenica in 1995. The foundation claimed that Dutchbat’s failure to protect the Bosnian Muslim men from the Bosnian Serbs, constituted a wrongful act attributable to both the Netherlands and the United Nations. The UN successfully relied on its immunity from the jurisdiction of the Dutch domestic court and was thus removed from the case, but the State of the Netherlands was held liable. The Netherlands Supreme Court held that the group of male refugees situated inside Dutchbat’s compound in Potočari on July 13, 1995, could and should have been protected from the Bosnian Serbs. The Supreme Court declared as follows:

“[…] the prospects of the male refugees were very bleak, even if they were to remain in the compound. It must be assumed that the Bosnian Serbs, after discovering that some 350 male refugees had stayed behind in the compound, would have been greatly displeased. They probably would have done everything within their power to remove the men from the compound or to have them removed. The Bosnian Serbs could exert heavy pressure to that end, either by continuing the shut-down of the supply route to the compound or by threatening to use violence, because they largely outweighed Dutchbat in terms of both the number of troops and strength of the weaponry […]. On the other hand, it cannot be completely ruled out that if Dutchbat had been able to withstand the threat of violence, the Bosnian Serbs would not have been willing to risk attacking the compound in order to deport the male refugees. […] All in all, it must be ruled that the chance that the male refugees, had they been offered the choice of remaining in the compound, could have escaped the Bosnian Serbs, was indeed small, but not negligible. In view of all of the circumstances, the Supreme Court estimates that chance at 10%.” (See Mothers of Srebrenica Association et al. v. the Netherlands, Supreme Court, judgment of 19 July 2019, English translation.)

In all three cases, the Netherlands Supreme Court held the State of the Netherlands responsible for wrongful acts and omissions in the context of a failed UN peacekeeping mission. That makes these judgments unique in the world. There are very few examples of judgments, issued by domestic courts, holding a UN troop-contributing State liable for wrongful conduct. Normally, the United Nations is itself responsible for the conduct of its peacekeeping forces. The situation in Srebrenica was truly exceptional, in the sense that the Dutch government – and not the UN Chain of Command - exercised effective control over the peacekeepers in the days immediately after the fall of Srebrenica.

What happens next? In the Mothers of Srebrenica case, the Supreme Court held that the Dutch State was liable for 10% of the damage suffered by the surviving relatives of the approximately 350 male refugees who were at the compound in Potočari on July 13, 1995. The Netherlands State is currently implementing this decision by issuing compensation. For this purpose, on July 2, 2020, an independent committee of experts started preparations for a claim settlement.

It is important to keep in mind that the entire international community failed to provide adequate protection to the people trapped in these so-called “safe areas” in the former Yugoslavia, including the “safe area” of Srebrenica. When the UN asked for states to volunteer and send troops, most states did nothing. The Netherlands did send troops. Other states were and continued to be bystanders (see my article about Bystander Obligations at the International Level). Indeed, we see that in practice there are good reasons for states not to act. States that do, are seldom rewarded for their efforts. And when peacekeeping ends badly, which often happens, this can traumatize both the victims, the troop-contributing state, and the individual UN peacekeepers themselves.  

Moreover, it is unfortunate that, primarily for jurisdictional and procedural reasons, the responsibility of the UN itself - in particular, the UN Security Council and its permanent members - for the consequences of important strategic decisions, cannot be adjudicated by a court of law. This gives the impression that only the Netherlands bears responsibility.

Having said that, as a member of the international community, the Netherlands does bear some responsibility for the situation to arise in which the Srebrenica genocide could have happened. And indeed, the Netherlands government already acknowledged its political responsibility for this in 2002, by offering its resignation. But it is essential to always remember who is really to blame for the Srebrenica genocide, i.e. the Bosnian Serb forces, led by Ratko Mladić (military leader) and Radovan Karadžić (political leader).

Finally, what is worth emphasizing is that the Netherlands government fully supported - and even initiated - various independent fact-finding efforts. See especially The Fall of Srebrenica (Report of the UN Secretary-General of 15 November 1999); the Rapport sur les événements de Srebrenica (Report of the Assemblée Nationale of France of 22 November 2001); Srebrenica—A “Safe” Area (Report of the Netherlands Institute for War Documentation of 10 April 2002); and Missie zonder vrede (Report of Dutch Parliament of 27 January 2003). The Netherlands never tried to obstruct any efforts to find out what had gone wrong in Srebrenica. 

Professor Otto Spijkers is a Dutch scholar who has published extensively on Srebrenica (see here and here). He is currently professor of international law at the China Institute of Boundary and Ocean Studies (CIBOS) of Wuhan University, China.

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