Srebrenica Case Clears First Hurdle

Relatives of the victims of the 1995 Srebrenica massacre say they are delighted by a Dutch court ruling that they can attempt to sue both the Netherlands and the United Nations for failing to prevent the tragedy.



Dutch troops, under a UN mandate, were in charge of Srebrenica when the town was captured by Bosnian Serb troops on July 11, 1995. Up to 8,000 Bosniak men and boys were murdered in what the Hague tribunal has ruled was genocide, and which the Dutch troops failed to stop.



The UN has so far declined to appear at the proceedings in The Hague district court, since it claims immunity from prosecution. The court, however, dismissed The Netherlands’ argument that this immunity rendered the whole case inadmissible.



The Mothers of Srebrenica pressure group, which represents the 6,000 relatives of the victims, say they were delighted to have cleared this first hurdle, although the court may yet decide the UN has immunity.



“This means that justice has overcome politics and the ones who did not stop the genocide, who did not help to protect our children, will learn something,” Munira Subasic, the president of the Mothers of Srebrenica, told IWPR.



Marco Gerritsen, one of 14 lawyers representing the group, said, “The UN had a lot of obligations towards these people since it declared the area of Srebrenica as a ‘safe area’ and until the end did promise that it would protect these people.”



Failings cited centre on the inadequacies of the UN and the Dutch battalion, including the failure to launch air strikes against the Serbs. The group also says the UN’s declaration that it would only retaliate as a last resort was practically an invitation to Serb forces to continue their assault.



“The UN did not just see a genocide happen, the UN helped and was itself a participant in this genocide,” said Subasic.



Under the UN’s founding charter, the 1946 Convention on the Privileges and Immunities of the UN, it enjoys legal immunity “for the fulfillment of its purposes”. This provides the legal basis for the UN’s refusal to take part in the proceedings, although it has allowed the Dutch government’s team to argue on its behalf.



However, the Mothers of Srebrenica’s legal team argues that genocide, such as at Srebrenica, “is not the fulfillment of the purposes of the UN”, and that an appeal to immunity “is irreconcilable with the UN’s own objectives and its international obligations”.



The case highlights a conundrum where UN member states are caught between an obligation to protect human rights, under the European Convention of Human Rights, for instance, and an obligation to ensure the immunity of the UN, and is being watched closely by legal experts.



“The UN needs immunity to function. It should not be looking over its shoulder all the time thinking perhaps it might be sued for its failings,” said Dr Andre de Hoogh, a senior Lecturer in International Law at the University of Groningen.



He said that setting aside UN immunity would have major ramifications for the organisation, since it would have to be more cautious in its actions to avoid potential future compensation claims.



“It’s very unlikely that they [the court] would set aside the immunity to comply with their human rights obligations. I don’t see it happening,” said de Hoogh.



The Mothers of Srebrenica is also seeking to hold The Netherlands to account for the atrocities, despite the fact that the UN had operational control of the forces on the ground.



The legal team says the Dutch refused to allow the UN to provide crucial air support to the protected enclave. It also blames Dutch politicians for interfering with the UN mandate.



“The Dutch state contradicted the UN command by initiating and influencing specific decisions. As long as the state is influencing the outcome of decisions being made in the ‘safe area’ then you as a country can be held responsible,” said Gerritsen.



An independent 2002 report on events at Srebrenica conducted by the Netherlands Institute for War Documentation blamed the Dutch government for undertaking an “impossible mission”. The report prompted the then Dutch prime minister Wim Kok and his government to resign.



However, The Dutch Veterans Institute, which has among its staff former members of the peacekeeping force in Bosnia, blames the UN and its cumbersome bureaucracy for the tragedy.



“There were no real Dutch troops. They were international UN troops so the Dutch government was not in the lead, the UN was,” said a spokesperson.



But according to de Hoogh, the Mothers of Srebrenica could argue that the UN chain of command was compromised by interference from the Dutch ministry of defence, which appears to have remained in direct contact with Dutch officers in the field and hence influenced their decisions.



The Dutch government itself says it does not consider that it has a case to answer.



The Mothers of Srebrenica said the Dutch government and the UN had admitted their mistakes, but did not want to take responsibility for what they had done.



“We expect them to pay us damages for our pain, so the children who lost their parents can be educated, and can have a life,” said Subasic.



But since it is impossible to adequately compensate someone for the loss of their entire family, some experts wonder if there is any point to the case at all.



“I doubt personally whether this will solve their real problems,” said Professor Hans Blom, the former director of the Netherlands Institute for War Documentation.



“In some cases this only has the effect that the tragedy comes back again and again.”



Simon Jennings is an IWPR reporter in The Hague.