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Srebrenica Lawsuit Reaches Court of Appeal

Bosnian survivors seek to overturn ruling granting UN legal immunity
By IWPR ICTY
An appeals court in The Netherlands will hear arguments next week on a lawsuit brought against the United Nations by survivors of the Srebrenica massacre in eastern Bosnia in 1995.



The appeal lodged by a victims’ group known as the Mothers of Srebrenica comes after the district court in The Hague ruled in July 2008 that it could not sue the UN for failings surrounding the mass killings because the organisation enjoys legal immunity.



“The Court declares that it has no jurisdiction to hear the action against the United Nations,” read the district court’s decision.



“In international law practice the absolute immunity of the UN is the norm and is respected.”



The Mothers of Srebrenica, which represents more than 6,000 relatives of victims, are attempting to sue both the UN and The Netherlands for the failure of Dutch troops, who were at the time acting under a UN mandate, to prevent the massacre.



On July 11, 1995 the eastern Bosnian town was overrun by Bosnian Serb forces resulting in the killing of up to 8,000 men and boys in the worst single atrocity on European soil since the Second World War.



The enclave of Srebrenica had been declared a UN safe haven in April 1993 to protect its residents as well as thousands more civilians from nearby villages who had gathered there.



According to lawyers representing the Mothers of Srebrenica, the hearing on January 28 will rule on “the question whether the UN enjoys absolute immunity and may therefore never be brought before a court, and therefore is an entity operating above the law”.



Under the UN's founding charter, the 1946 Convention on the Privileges and Immunities of the UN, the organisation benefits from legal immunity “for the fulfilment of its purposes”.



The district court supported this notion in its 2008 ruling and dismissed the plaintiff’s arguments that by claiming immunity the UN fell short of its international obligations.



The UN itself has yet to appear in the proceedings. According to the plaintiff’s lawyers, the Dutch state is seeking immunity on the UN’s behalf, arguing that it is the state’s legal duty to guarantee it immunity - as laid down in the UN charter - within The Netherlands.



According to one of the lawyers representing the Mothers of Srebrenica, every civilian is guaranteed access to make a claim before a court under Article Six of the European Convention on Human Rights.



“We always argue that immunity is against [Article Six]. If you have absolute immunity of the United Nations, this is not in line with Article Six of the European Convention on Rights,” Axel Hagedorn told IWPR.



“If there is no court where you can go [to bring a case against the UN] Article Six has to prevail before the immunity of the United Nations,” he added.



The Mothers of Srebrenica team is also suing the Netherlands state for the events that unfolded in Srebrenica in 1995. Lawyers representing the organisation say that the Dutch refused to allow the UN to provide crucial air support to the protected enclave and also blame Dutch politicians for interfering with the UN mandate.



IWPR contacted the Dutch ministry of foreign affairs but it declined to comment on the case ahead of next week’s proceedings.



Next week’s decision will determine whether the UN has to appear alongside the Dutch state in the lawsuit or not. If the court of appeal confirms the UN’s immunity in proceedings then the Mothers of Srebrenica will bring the case only against the Dutch state.



“If the United Nations enjoys immunity then the case will go on without the United Nations against the Dutch state,” Hagedorn said. “Or if the court decides there is no immunity for the United Nations, then they [the UN] have to appear.”



Simon Jennings is an IWPR reporter in The Hague.