Setback in the Srebrenica survivors’ search for justice
Here’s an update on the decision handed down by the panel of judges in the District Court at The Hague on Wednesday 10 September, in the case being brought by the Srebrenica survivors against the Dutch state for its failure to protect their relatives. When the Dutchbat officers ordered the 5-6000 refugees under their protection inside the UN compound at Potocari to leave the base, effectively handing them over to be killed by Ratko Mladic Hasan Nuhanovic lost his father, mother and younger brother. Mehida Mustafic lost her husband Rizo and her daughter Alma and son Damir lost their father.
The International Criminal Tribunal for the Former Yugoslavia is about securing convictions against war criminals. Justice for the victims is only incidental. That’s why Hasan Nuhanovic and the Mustafics are pursuing their two cases against the Dutch in the civil courts.
The bottom line from Wednesday’s hearing is that the District Court considers that they have no claim against the Netherlands for its failure to protect their relatives at Srebrenica. When the Dutch government transferred command and control over the Dutchbat contingent to the United Nations Protection Force UNPROFOR it handed over responsibility to the UN, the court decided. And whatever Dutch soldiers did or failed to do under the UN flag, the UN has absolute immunity.
In both the cases it was argued that Dutchbat and the Dutch government had committed wrongful acts by offering insufficient protection to the victims and exposing them to the enemy (by ordering them to leave the compound at Potocari in the knowledge that they had good reason to fear being killed and the Bosnian Serbs were in fact already killing refugees outside the base). Hasan and the Mustafics held the State of the Netherlands responsible for this.
The judges decided firstly to accept the State of the Netherlands’s defence that the actions of Dutchbat should be attributed exclusively not to the Netherlands but to the United Nations, because the UN exercised operational command and control over the Dutch contingent.
The court decided that it was unnecessary for it to determine whether the Netherlands had fulfilled its obligations under human rights treaties, the Genocide Convention and the Red Cross (Geneva) conventions because after the relevant powers of control and command had been transferred by the Netherlands to the United Nations, the violation of any such standards could not be attributed to the State.
So as far as the court was concerned it was irrelevant whether Dutchbat officers had or had not ordered the refugees to leave the base. What mattered was that Dutchbat was acting within the UN chain of command and control and not as a national force.
The court decided that the European Convention on Human Rights (ECHR) was not applicable because the United Nations are not a contracting party to the Convention and the citizens of Srebrenica did not come under the jurisdiction of the Netherlands (which is).
It examined the argument that if those in charge of the armed forces and/or members of the National Government had cut across the United Nations command structure – i.e. so that the basis for attributing responsibility to the United Nations instead of to the Netherlands had been undermined – then there would be scope for the court to consider whether the Netherlands might have been responsible.
So it considered whether the Dutch authorities might have instructed Dutchbat to ignore or go against United Nations orders and it also considered whether Dutchbat had, with the agreement of persons in authority in the Netherlands, backed out of the UN command structure. The court did not find that this was confirmed and so did not find that responsibility could in fact be attributed to the State of the Netherlands.
Because the court did not accept the evidence submitted of how the Dutch command within UNPROFOR had side-stepped the chain of command and consulted with national authorities, the Netherlands avoids responsibility. Responsibility lies instead with the United Nations, which the same District Court found in the Mothers of Srebrenica’s court case had “absolute immunity”.
That means that it is irrelevant whether the obligations under human rights treaties, the Genocide Convention and the Red Cross (Geneva) conventions that were transferred from the Netherlands to the UN were satisfied.
The District Court has decided that no-one is to be held accountable for the deaths of the refugees even though genocide occurred. Hopefully at some stage it will be clarified whether whether this situation is tenable. The two cases, like the Mothers of Srebrenica’s case, will be appealed, though Liesbeth Zegveld, the lawyer in the Nuhanovic and Mustafic cases, is careful not to be optimistic, because of the political context. Dutch Defence Ministry spokesman Roger van de Wetering said that the government was studying the ruling – “We have seen in the media that the claimants are appealing, so we are waiting.”
The references to the process by which the court reached its decisions have come from the court reporting at Rechtspraak.nl – go to:
Hasan Nuhanovic’s case is reported as No. 4 – LJN: BF0181, Rechtbank ‘s-Gravenhage, 265615 / HA ZA 06-1671(English translation) and No. 7 – LJN: BF0184, Rechtbank ‘s-Gravenhage, 265615 / HA ZA 06-1671. (Dutch)
Mehida, Alma and Damir Mustafic’s case is reported as No. 5 – LJN: BF0182, Rechtbank ‘s-Gravenhage, 265618 / HA ZA 06-1672 (English translation) and No. 6 – LJN: BF0187, Rechtbank ‘s-Gravenhage, 265618 / HA ZA 06-1672 (Dutch). (The two English translations of the case reports seem to be identical.)
If you’re interested in some English-language media reports Mike Corder of Associated Press seems to have cornered the field; his report is widely reproduced in one form or other in most of the accounts that have appeared so far.
CBC include a picture of Hasan talking to the media – the caption includes a reference to the intention to appeal the decision, offsetting the generally negative tone of most of the headings which focus on the Court’s dismissal of the action. There’s an account at Srebrenica Genocide Blog with some more pictures and comments. The readers’ comments on the report at The Globe and Mail website include an indirect reference to the fact that the G&M was the vehicle used by General Lewis MacKenzie for his infamous refutation of the ICTY’s deliberations on genocide at Srebrenica.
CBC – http://www.cbc.ca/world/story/2008/09/10/netherlands-bosnian.html
Srebrenica Genocide Blog – http://srebrenica-genocide.blogspot.com/2008/09/dutch-court-dismisses-srebrenica-case.html
Toronto Globe and Mail – http://www.theglobeandmail.com/servlet/story/RTGAM.20080910.wsrebrenica0910/BNStory/International/?page=rss&id=RTGAM.20080910.wsrebrenica0910
Voice of America News – http://voanews.com/english/2008-09-10-voa25.cfm (MP3 audio clip of Lauren Comiteau report)