Dutch Supreme Court Rules on the Netherlands’ Liability in Srebrenica Deaths

July 22, 2019
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by Catherine Trautwein Tow Journalism Fellow, FRONTLINE/Columbia Journalism School Fellowship

The 1995 genocide of thousands of Muslim men and boys in Srebrenica left an indelible mark on Bosnia and Herzegovina. But more than 1,000 miles away from the site of the bloodshed, the Netherlands is still grappling with its role in the massacre, which has been described as one of the “blackest pages in the country’s history.

During the 1992-95 war in Bosnia, the Dutch state sent peacekeepers to Srebrenica, which had been designated a “safe area” by the United Nations. It didn’t remain safe for long. On July 11, 1995, Srebrenica was overrun by Bosnian-Serb forces led by Ratko Mladić. In The Trial of Ratko Mladić, FRONTLINE explored the case against the so-called “Butcher of Bosnia” and his role in the deaths of 7,000 Muslim male refugees who were murdered after they fled the city. 

Last week, the Dutch Supreme Court ruled that the government of the Netherlands must accept some liability in the deaths of hundreds of Muslim men in the massacre at Srebrenica. Here’s what you need to know about the case and what it means for the future of peacekeeping. 

Why was the Netherlands sued?

Simply put, because that’s where the U.N. peacekeepers in Srebrenica came from, and the plaintiffs — a group of 6,000 relatives of the slain Muslim men and boys — could not sue the U.N. itself. The group, the Mothers of Srebrenica, believes that the Dutch state and the United Nations are responsible for the downfall of the city, and therefore liable for their family members’ demise.

How did the case start?

The law firm Van Diepen Van der Kroef, spurred on by Bosnian lawyers, filed suit against the Dutch state and the U.N. on behalf of the Mothers of Srebrenica in 2007. But suing an entity like the U.N. was a long shot.

“We knew at that time, of course, that the U.N. has immunity of jurisdiction,” Simon van der Sluijs, a lawyer on the case, told FRONTLINE. Van der Sluijs says this immunity lets the U.N. do its job without leaving behind a long tail of legal trouble, an imperviousness that has raised concerns.

After a Dutch district court, appeals court, and finally its Supreme Court ruled they could not hear a case against the U.N., the Mothers of Srebrenica case went on against the Netherlands.

“I think it was worth it to try it,” van der Sluijs said. “We had a good point, and we still have a good point.”

How did the case get to the Dutch Supreme Court?

The Mothers of Srebrenica case progressed through the Dutch justice system — district courts, appeals courts — for years.

In 2014, the Hague district court ruled the Dutch state was indeed liable in deaths of male Muslim refugees. However, the court decided that the Dutch were only accountable for the deaths of about 300 people — the group that had made its way onto the peacekeepers’ compound in Potočari, 4.5 miles away from Srebrenica, which thousands of people fled to after the fall of the safe zone.

Both the Mother of Srebrenica and the state appealed the ruling. The plaintiffs argued the Dutch state should be liable for more deaths. On the other hand, a spokesperson for the Dutch defense ministry told AFP in 2014 that Bosnian Serb troops bore sole responsibility for the massacre at Srebrenica.

At the appeals level, the case took a wonky turn. In 2017, the Dutch were again found liable in hundreds of male victims’ deaths — but the scope of that liability had shrunk. The appeals court ruled that the 350 male refugees who had been compelled to leave the UN compound would only have had a 30 percent chance at survival had they stayed. “The State is therefore liable for 30 percent of the losses suffered by the relatives,” according to a judicial statement.

Munira Subasic, a member of the Mothers of Srebrenica, described the ruling as a “great injustice.” Meanwhile, the Dutch defense ministry spokesperson called the decision “incomprehensible.” Again, both sides appealed the ruling.

What did the Supreme Court decide, exactly?

Van der Sluijs said the court considered when the Dutch state had control over its peacekeepers. The Mothers of Srebrenica have argued that the Dutch had control at an earlier point than the courts have previously determined, which would have made them liable for many more deaths.

What did the court rule?

The Supreme Court ruled that the Dutch peacekeepers, and therefore the Dutch government, was wrong not to give 350 Muslim men who were at the compound the chance to stay.

“This failure on Dutchbat’s part denied these male refugees the chance to stay out of the hands of the Bosnian Serbs,” a judicial statement read. “That was wrongful because Dutchbat knew that the male refugees were in serious jeopardy of being abused and murdered by the Bosnian Serbs, and all possible action should have been taken to prevent such an outcome.”

Despite this, the court ruled that even if the Muslim men had been offered the option of remaining at the compound, they would have had only a “slim” chance of evading the Bosnian Serbs. That chance — gauged at 10 percent by the court, down from the 30 percent assigned at the appeals level — now equals the percentage of damages the state must pay to surviving relatives of the men.

“The judgment left the door open to troop-contributing-state responsibility for peacekeeper wrongdoing, but it kept that opening very narrow,” Tom Dannenbaum, an international law professor at Fletcher School at Tufts University, wrote in an email to FRONTLINE. “In most cases, the state will not be responsible, and the UN will be immune, leaving an accountability vacuum. This was one of the very rare cases when some state responsibility applied.”

What are the potential implications of the ruling?

FRONTLINE spoke to experts ahead of the ruling in July. They said that if the court ruled in favor of the Mothers of Srebrenica, who believe the Dutch to be liable for a larger number of deaths in the massacre, it could make room for more lawsuits against peacekeepers. “The broader the ruling goes, in terms of state responsibility, the more that opens an avenue for accountability for peacekeeping abuses,” Dannenbaum said.

In 2014, after the first ruling in the Mothers of Srebrenica case, the Netherlands sounded a note of caution about the “risk of jurisprudence” for future missions.

“A country would think twice or maybe even three times before sending in missions to situations that are ethnically divided where genocide is likely to occur,” said NIOD researcher Thijs Bouwknegt.

A win for the state would demonstrate that “we do not consider the UN responsible, we also do not consider the troop-contributing country responsible, and…there is perhaps not really responsibility for these countries, unless under human rights law,” said University of Groningen and VU Amsterdam international relations lecturer Lenneke Sprik.

It’s likely the outcome the UN wants, according to Utrecht University public international law lecturer Otto Spijkers. “Then states that are considering providing troops to peacekeeping missions know it is very hard to hold them responsible for any failure,” he said.

If the court upholds the decision — which was based on circumstances specific to Srebrenica — its wider implications could be fairly minimal, said Dannenbaum. But Sprik argues that upholding the appeals court’s decision could still make waves. “I think the main outcome for international law…is that troop-contributing countries can be held responsible to some extent,” Sprik said. “I think in the past…that was considered quite unlikely.”

Whatever the verdict, the case has the potential for far-reaching consequences.

“It’s going to shape how we think about peacekeeping; it’s going to shape our thinking about who’s liable for genocide, crimes against humanity or other atrocities and how far does that stretch, even when we’re talking about states that didn’t commit the crime per se,” said Bouwknegt.

This piece has been updated. 

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