Court: District Court The Hague, The Netherlands

Type of decision: Judgment

Date judgment: 16 July 2014

Case no.: 295247 HA ZA 07-2973

Area of jurisdiction: Civil Law

Claim: (1) The Dutch State failted to comply with its legal obligations ; (2) The Dutch State breached its obligation to prevent genocide under the Convention on the Prevention and Punishment of the Crime of Genocide of 9 December 1948; (3) The Dutch State is liable for the damages caused by its wrongful acts

Principle legal argument(s): The acts of Dutchbat, allocated to the UN in the context of the peacekeeping mission UNPROFOR, are attributable to the Dutch State as a result of which the Dutch State is liable for these acts.

Type of reparation sought: Compensation for damages

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After the Dutch Supreme Court ruled on 13 April 2012 that the Mothers of Srebrenica could not file charges against the United Nations (UN) due to its immunity, they filed charges against the Dutch State, claiming that the Dutch State is liable for their damages caused by wrongful acts of its military troops, known as Dutchbat, and claiming reparation in the form of compensation. Dutchbat was allocated to the UN in the context of the UN peacekeeping mission UNPROFOR, mandated to keep the peace in the safe area[1] surrounding Srebrenica and protect its population. In this case, the Mothers of Srebrenica (plaintiffs) claim that these wrongful acts are, nevertheless, attributable to the Dutch State.

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To establish the liability of the Dutch State, two conditions must be met:

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• The act(s) of Dutchbat must be attributable to the Dutch State;
• The act(s) must be wrongful.

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Plaintiffs set forth that the Dutch State, through Dutchbat:

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1. failed to protect the refugees residing within the mini safe area[2], in breach of its obligation;
2. acted wrongfully towards them according to both domestic and international law;
3. failed to prevent genocide, in breach of its obligation.

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More specifically, plaintiffs claim inter alia that, ahead of the fall of Srebrenica, Dutchbat made insufficient efforts to protect the population in the safe area and to stop the Bosnian Serbs from advancing by (too easily) giving up observations posts and blocking positions. In addition they claim that the Dutch State blocked and stopped air support (para. 3.2.1).

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Plaintiffs also claim that, after the fall of Srebrenica, Dutchbat inter alia breached their superior’s orders to leave the observations posts immediately and not to hand over their weapons and military equipment to the Bosnian Serbs. Furthermore, Dutchbat allegedly advised Bosnian muslim men to flee into the woods, did not grant access to the compound to all refugees, failed to report war crimes, contributed to the separation of muslim men during the evacuation of the refugees, and has contributed to the evacuation of the regufees located within the compound (para. 3.2.1).

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Attribution of Dutchbat’s acts to the Dutch State: effective control criterium

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Having allocated military troops to the UN in the context of a peace keeping mission, the question arose whether Dutchbat’s alleged wrongful acts, in so far they took place in the name of the UN, are attributable to the Dutch State. With reference to the Dutch Supreme Court’s decision in the Nuhanoviccase, the Court relies on Article 7 the ILC Draft Articles on the Responsibility of Internatinal Organizations 2011 (DARIO), entailing the “effective control” criterium. Notwithstanding that this provision governs the attributability of acts of UN troops to the UN, the Court finds that this provision also applies in the case attribution to States (para. 4.33). Consequently, the attribution of Dutchbat’s acts to the Dutch State, requires that the latter had “effective control” over these acts at the relevant time. Effective control entails a State’s “factual control” over their troops’ specific acts and is to be determined by the circumstances of the case (para. 4.34).

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The Court notes that, although the Dutch State had transferred “command and control” over Dutchbat to the UN, i.e. the UN controlled the operational execution of UNPROFOR’s mandate, the Dutch State kept a certain degree of control over Dutchbat, that remained employed by the Dutch State, for instance regarding personnel matters and regarding disciplinary measures and criminal punishment (para. 4.41). In sum: the transfer of command and control does not stand in the way of “effective control.”

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Assessing whether Dutchbat made insufficient efforts to protect the population in the safe area [3] and to stop the Bosnian Serbs from advancing by (too easily) giving up observations posts and blocking positions, the Court concludes that, before the fall of Srebrenica, the Dutch State only had effective control over Dutchbat’s taking up blocking positions, since they were instructed to do so by the Dutch minister of Defence on 9 July 1995 (para. 4.62). The Court rules that the rest of the alleged wrongful acts cannot be attributed to the Dutch State –that thus cannot be held liable thereof- due to lack of effective control (paras. 4.77, 4.136-4.137).

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After the fall of Srebrenica in the afternoon of July 11 1995, a transitional period had started. In concert, the Dutch State and the UN decided that Dutchbat, in a situation wherein Srebrenica had fallen and the peacekeeping mission had failed, would focus on its humanitarian task and the preparation of the evacuation of the refugees from the mini safe area. The Court observes that the Dutch State – at the highest level – played a role in the decision making process (paras. 4.80, 4.83) and thus excercised effective control over Dutchbat a) during the transitional period b) in the mini safe area. The attribuble acts are:

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• failure to report war crimes witnessed in the mini safe area and in the immediate vicinity;
• not providing adequate medical care to refugees;
• handing over weapons and other equipment at the time of the evacuation of the refugees;
• maintaining the decision not to allow refugees on the compound, a decision that was taken and executed before the transitional period started;
• the separation of men from the other refugees during the evacuation;
• contribution to the evacuation of refugees that stayed at the compound (para. 4.91).

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The Court stresses that the effective control does not extend to Dutchbat’s acts towards refugees who came to the mini safe area before the transitional period. Neither does the effective control extends to the refugees outside the mini safe area, or to Dutchbat’s acts (such as giving up the observation posts) outside the mini safe area (para. 4.87).

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Wrongfulness of attributable acts

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The Court then addresses the second crucial issue, whether these acts are wrongful. Having explained that the context in which these acts took place is of relevance (para. 4.203), the Court carefully reconstructs the events and assesses their (un)lawfulness under Dutch domestic law, the ECHR, the ICCPR and other rules of international law, such as the obligation to prevent genocide (paras. 4.161-4.178).

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Genocide

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In the context of their humanitarian task and the evacuation of refugees mainly comprising elderly people, women and children, at that time located under untenably poor conditions in the mini safe area, Dutchbat initiated talks with the commander of the Bosnian Serbs, Mr Mladi?. Mr Mladic indicated that the able-bodied men between 16 and 60 years of age would first be screened for war-crime offences and subsequently returned to the “enclave” in order to be evacuated (para. 4.2.11-212). The evacuation started chaotically on July 12 at 14:00 PM, refugees were abused by Bosnian Serbs who squeezed them into overcrowded busses. To mitigate this ill treatment, Dutchbat personnel supervised the way into the buses by forming a human corridor (para. 4.215). Soon, the Bosnian Serbs started systematically to separate able-bodied men from the rows of refugees making their way to the buses and taken to buildings located near the mini safe area (para. 4.217). Afterwards it turned out that these men were killed by the Bosnian Serbs, killings that have been qualified as genocide by the International Court of Justice and the International Criminal Tribunal for the Former Yugoslavia (ICTY) (paras. 4.220, 4.221).

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The Court determines that in this transitional phase, Dutchbat witnessed, but failed to report, war crimes such as murder, rape and abuse of the refugees in (the vicinity of) the mini safe area. Particularly in relation to Dutchbat witnessing genocide on these Muslim men, the Court distinguishes three phases:

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1. Given that the worldwide growing fear for genocide in Srebrenica after it had fallen should have raised Dutchbat’s alertness, the Court at the same time finds that at the start of the evacuation on 12 July 1995, Dutchbat could reasonably assume that the separated men would be screened on war crime offences and had no reason to fear for these men’s lives.
2. However, this changed at the evening of July 12. Having frequently heared shots indicating executions and hearing rumours about the executions, Dutchbat could by then have suspected that the separated men where at risk of being killed or brutally treated (para. 4.247).
3. On July 13, Dutchbat should have been concious of the risk of genocide when Bosnian Serbs took the men from the mini safe area (para. 4.254)

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Against this background, the Court concludes that:

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• Although Dutchbat wrongly failed to report the war crimes within the UN line of command, the conditions for the causality necessary for liability were not met: for such liability to arise, the reporting of these crimes would have to have lead to military intervention that in turn would have saved lives. This was not found to be the case. It follows that the Dutch State cannot be held liable for this wrongful failure (paras. 4.262, 4.276).
• Handing over their weapons and other equipment to the Bosnian Serbs contravened orders, yet cannot be qualified as unlawful, given that the Dutchbat soldiers were compelled to do so at gunpoint.
• Maintaining the decision not to allow more refugees into the compound during the transitional period, was reasonable, considering the deteriorating situation of the refugees in the compound. In addition, the Court accepts the State’s defence that Dutchbat needed a certain amount of open space for combat actions.
• Dutchbat’s decision to let the Bosnian Serbs take the men in the first phase of the evacuation was reasonable (para. 4.298) for the reasons set out above.
• Dutchbat’s decision not to stop the evacuation of refugees from the mini safe area, in the evening of July 12, was reasonable since this decision was taken after carefully balancing the risk that handing over the men to the Bosnian Serbs would lead to their deaths, against the safety of women and children and against the deteriorating situation at the scene (para. 4.303).
• Dutchbat could reasonably decide to continue to contribute to the separation of Muslim men by forming human corridors between the busses. Even in the absence of these acts by Dutchbat, Bosnian Serbs would have separated the men from the rest of the refugees. Provided that Dutchbat withheld itself from actively participating in separating the men, these acts of Dutchbat are not wrongful (paras. 4.310-4.312).

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However:

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• The decision taken in the afternoon of July 13 to contribute to the evacuation of the able-bodied men present on the compound was unreasonable (paras. 4.321, 4.338) since, by that time, Dutchbat was aware of the serious risk of genocide or inhumane treatment, if the men present in the compound were taken away by the Bosnian Serbs. Of relevance to the Court is also that Dutchbat had full control over the compound, in contradiction to the rest of the mini safe area, and that this control was respected by the Bosnian Serbs. As a result, the Dutch State had jurisdiction over activities within the compound, as referred to in Articles 1 ECHR and ICCPR (para. 4.322). Consequently, having the able-bodied men leave the compound in the afternoon of 13 July constituted a wrongful act, for it violates the right to life laid down in Articles 2 ECHR and Article 6 ICCPR and breaches the duty of care enshrined in Article 6:162 of the Dutch Civil Code, which is informed by the legal principles of the aforementioned treaty provisions and by the State’s own legal obligation to prevent genocide. It follows that the Dutch State is liable for the damages suffered by the relatives of the men that where taken from the compound on the afternoon of July 13th 2012, and killed (para. 5.1).

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Plaintiffs appealed this decision before the Court of Appeal that released its judgment on 27 June 2017.

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The District Court’s ruling is also available in Dutch.

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[1] i.e. the city of Srebrenica and its surroundings, as indicated is UN Resolution 836 (para. 4.16)

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[2] i.e. Dutchbats’s compound in Poto?ari and the area south of the compound, where a number of factory halls were located.

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[3] i.e. the city of Srebrenica and its surroundings, as indicated is UN Resolution 836 (para. 4.16)