UN Ruled Immune From Srebrenica Prosecution

Lawyers representing relatives of victims say they will continue to pursue case, despite Dutch court decision.

UN Ruled Immune From Srebrenica Prosecution

Lawyers representing relatives of victims say they will continue to pursue case, despite Dutch court decision.

Saturday, 3 April, 2010

The United Nations cannot be prosecuted for failing to protect the nearly 8,000 Bosniak men and boys who were killed in the 1995 Srebrenica massacre, a Dutch court of appeals ruled this week in The Hague.

“The immunity from prosecution granted to the UN … is closely connected to the public interest pertaining to keeping peace and safety in the world,” judges stated in the March 30 decision, which upholds a July 2008 Dutch district court ruling.

The original civil lawsuit was brought against the UN and the Dutch state in 2007 by a group known as the Mothers of Srebrenica, which represents about 6,000 relatives of those who were killed in the massacre.

In their decision this week, the judges acknowledge “the terrible events the Mothers of Srebrenica and their relatives fell victim to, and the suffering inflicted on them as a result”.

They also say that it is a “generally known fact” that genocide took place in Srebrenica. The massacre was established as such by both the the Hague tribunal and the International Court of Justice.

In 1993, the UN designated the Srebrenica enclave in eastern Bosnia a “safe area”. The Netherlands subsequently offered a battalion of soldiers to help protect the enclave, but lawyers representing the plaintiffs say the soldiers were ill prepared for the mission.

When the enclave fell to Bosnian-Serb troops on July 11, 1995, thousands of Bosniak civilians fled to the UN headquarters in nearby Potocari, which was deemed a “mini-safe area”.

At the appeals hearing on January 28 in The Hague, lawyers for the plaintiffs argued that many of these civilians “were actually handed over to the Bosnian Serbs” by the Dutch UN soldiers, known as Blue Helmets.

“Both the UN military observers present in the safe area and the Netherlands Blue Helmets were witness to many war crimes,” the lawyers further alleged at the January hearing. “There was neither intervention nor any reporting done of those crimes.”

In the days following the fall of Srebrenica, nearly 8,000 Bosniak men and boys were killed. It is considered the worst single atrocity on European soil since World War II.

At the appeals hearing in January, the Dutch government maintained that “culprits of the fall of Srebrenica and the genocide is the Bosnian Serbian army, in particular [the head of the army] General [Ratko] Mladic. The Bosnian Serb army is to blame; the Bosnian Serb army is responsible”.

While acknowledging the grisly events that took place, the judges this week concluded that “it was not the UN that committed genocide”.

“Neither can it be inferred from the arguments put forward by the [plaintiffs] that the UN knowingly assisted in committing the genocide,” the judges further stated.

They also say that although allegations of failing to prevent genocide are serious, “it is not that pressing that immunity should be waived or that the UN’s invocation of immunity is straightaway unacceptable”.

They further state that this type of claim, in the context of peacekeeping operations around the world, could “be latched onto too easily, which could lead to misuse”.

One of the lawyers representing Mothers of Srebrenica, Axel Hagedorn, told IWPR that while the decision seemed to suggest in part that there could be exceptions to UN immunity, the judges ultimately decided the reasons were not strong enough in this case to make such an exception.

“It’s strange because, what else could happen [other] than a genocide? What could be worse to make an exception?” Hagedorn said.

At the end of their decision, the judges say they “regret” that the UN “has not instigated an alternate course of proceedings” as they were required to do when the organisation was created in 1946, as a condition of immunity. If created, this could allow people to seek damages directly from the organisation itself.

“It’s 60 years later,” Hagedorn said. “[The UN] has to … create settlement opportunities and they just don’t do it.”

He said that the case will now go before the Supreme Court of The Netherlands, and that his team will ask for it to be referred to the European Court of Justice, based in Luxembourg.

“We think this is a European question,” Hagedorn said. “This is all about European fundamental rights. It’s about the guaranty of effective legal remedies, so you can go to court.”

Rachel Irwin is an IWPR reporter in The Hague. 

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