Court Decision Boosts Srebrenica Claim

Wednesday, 9 November, 2005

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Lauren Etter

A long-running campaign to sue the Dutch government over the Srebrenica massacre has been boosted by a court’s decision to compel several key witnesses to testify at an upcoming preliminary hearing.

Hasan Nuhanovic, a former Bosnian Muslim translator for the United Nations, filed a claim against the Dutch government three years ago, claiming that it was partly responsible for the deaths of his parents and brother at the hands of the Bosnian Serb army.

Now, it would appear that the authorities will have to take the claims seriously after the Dutch court of appeals recently overturned a lower court’s refusal to force key witnesses to testify at a preliminary hearing to determine if there is enough evidence for a prosecution and trial.

While no date for the hearing has yet been set, several high-ranking Dutch officers such as former defence minister Joris Voorhoeve, former major Robert Franken and former lieutenant colonel Ton Karremans – who was in charge of the battalion guarding Srebrenica – will now be required to testify if called.

In addition, this week’s historic public apology to the Srebrenica survivors by the government of the Bosnian Serb entity Republika Srpska - in which it formally acknowledged responsibility for the deaths of more than 7,800 men and boys - may put further pressure on the Dutch government to examine its own involvement.

“The more people who speak out with regard to their part, the more pressure there will be on the Dutch government to accept responsibility,” said Nuhanovic.

The Dutch government has been heavily implicated in the failure to prevent the genocide in the so-called UN safe haven, which took place under the immediate watch of a Dutch peacekeeping battalion known as Dutchbat.

After the fall of the enclave on July 11, 1995, thousands of Bosnian Muslims had frantically gathered inside the UN compound, begging for protection and assistance.

The Bosnian Serbs who had overrun the enclave claimed that they would bus the refugees to safety – but insisted that the men and boys needed to be taken away separately for questioning. Instead, they were executed and their bodies concealed in a series of mass graves.

Survivors argue that Dutchbat not only failed to protect thousands of Bosnian Muslims, but in many instances directly aided the Serbs by handing over individuals who were later killed. This argument is at the heart of Nuhanovic’s claims.

Nuhanovic alleges that his family members were led directly to their deaths when officials refused to allow them to remain inside the UN headquarters, and views the appeals court decision as a vital step forward in the survivors’ attempts to find out what really happened.

“[The preliminary hearing] will be the first time that those who allegedly expelled my family will come to the court. They will have to answer questions under oath. In theory, if they refuse to come, they can be arrested,” he said.

No formal lawsuit has yet been filed. The preliminary hearing is intended to give both plaintiffs and accused a chance to better understand all of the relevant facts of the case, and to allow the complainants to decide if there is enough evidence to proceed with a formal trial.

Regardless of the possible outcome of the preliminary hearing, the fact that such high-profile witnesses can no longer refuse to testify is being viewed as a major step forward.

“It is extremely important for the survivors,” said Dion van den Berg, director of the Dutch human rights organisation IKV, and coordinator for legal and financial assistance to the Srebrenica survivors.

“This is the first time that the survivors will have the opportunity to take the lead in their search for truth and justice. They have never had the opportunity to tell their story and raise the questions that they think should be answered.”

There have already been two Dutch investigations into the Srebrenica massacre. One, a 4,000-page study by the Netherlands Institute for War Documentation, led to the mass resignation of the entire Dutch cabinet in 2002. The other was conducted by an independent Dutch parliamentary investigation.

However, survivors feel that their voices went largely unheard in both of these inquiries.

“At a certain point when things got really tough or interesting, the interviewers stopped asking all the important questions,” said Nuhanovic. “They never really went all the way to find out what happened.”

But Van de Berg warned that there is still a long way to go. “In legal terms [the appeals court decision] may just be a formality, but in this case it is much more complicated. [Srebrenica] is still an extremely painful subject in the Netherlands,” he said.

However, the Dutch government feels that there is not enough evidence to prove its liability in any potential lawsuit pressed by Nuhanovic.

Meina Dijkstra, one of the attorneys representing the state of the Netherlands, told IWPR, “This case is basically without merits. No damages are going to be awarded because there are no claims to be substantiated.”

The Dutch battalion at Srebrenica was too small to effectively enforce peace, he said. Also, two vital conditions for the successful deployment of the peacekeepers – that a ceasefire would be in place, and that the area would be demilitarised – were never met, and this in itself voided Dutchbat’s liability, he continued.

He also believes that the legal bid is improper, “The plaintiffs should not look at the state of the Netherlands [for liability], they should first look to the Bosnian Serb army and [if they want to question] whether the UN peacekeepers did not do enough, then they should look to the UN.”

As well as Nuhanovic's attempt to bring the Dutch authorities to court, there are two other separate legal actions by Srebrenica survivors - this time against the UN.

French lawyer Casero Agnes is leading one while Bosnian lawyer Semir Guzin is spearheading another. There is also an ongoing case in the International Court of Justice - which only hears disputes between states and not individuals - against Serbia.

Lauren Etter is an IWPR intern in The Hague.