July 1995. The situation in the Srebrenica enclave in Eastern Bosnia is tense. Serb forces approach the UN compound, where Bosnian refugees have sought shelter. The UN Protection Force, counting 400 Dutch peacekeepers (“Dutchbat”), is outnumbered and decides to retreat. Their opponent, general Ratko Mladić, allows local staff to be evacuated, provided they are in the possession of an official UN pass.
Rizo Mustafić works as an electrician on the compound, but he is seconded and is not employed directly by Dutchbat. He is not registered on the list, is sent away from the compound, and later dies at the hands of the Serbs. His surviving wife, son and daughter bring proceedings against the Dutch State, arguing that the failure of Dutchbat to evacuate Rizo constitutes a tort.
This is a hard case. Should the Dutch State be held liable for the consequences of the collapse of the UN compound? After all, Dutch peacekeepers faced the proximity of the relentless and unpredictable Mladić, unsupported by allied (air) forces and fearing for their own safety as well. On the other hand, Mustafić was amongst the last refugees, while distant thumps of machine guns and the separation of men and women outside the gates indicated his destiny. Was it really not possible to put him on the list?
Some may argue that no judge could possibly make such an assessment. The Court of Appeal in the Hague did though. After having balanced dangers and probabilities, it held that the conduct of Dutchbat constituted a tort under Bosnian private law (the lex loci delicti):
‘[T]he defense failed to demonstrate sufficiently that Dutchbat, in all reasonableness, had to take into account any other risk than the one which implied that Mustafić, if checked by the Bosnian Serbs, would have been stopped and killed after all.’ (par. 6.18)
The State brought the case before the Supreme Court, which recently reached a verdict. Although the Advocate-General expressed some doubts on this point (see par. 5.7 of his Advice), the Supreme Court held that it is possible to hold a sending State liable under international law even if the UN had ‘effective control’ over those troops as well (par. 3.11.2). Because the question of whether the conduct itself was unlawful concerns the interpretation of Bosnian private law, the Supreme Court did not address that issue in detail. As a result, the ruling of the Court of Appeal has been affirmed, and the Dutch State will have to pay damages to the Mustafić family.
This outcome raises several questions. Is it up to civil law courts to assess the risks involved in peacekeeping operations? What would have happened had Dutchbat decided to evacuate Mustafić? To what extent does this judgment constitute a precedent to be used by surviving relatives of other Srebrenica victims? And, more political: will this judgment have an effect on the willingness of States to intervene in war situations?
The latter point was raised by the Dutch State in its pleadings. The Supreme Court decided to address this argument in an obiter dictum:
‘This [argument, RdG] should not (…) prevent the possibility of judicial assessment in retrospect of the conduct of the relevant troop contingent. The court should indeed make allowance for the fact that this concerns decisions taken under great pressure in a war situation, but this is not something that has been disregarded by the Court of Appeal.’ (par. 3.18.3)
The outcome certainly provides food for thought. It shows that Dutch civil law courts are willing to accommodate some surviving relatives of victims of the Srebrenica massacre. But questions remain – on the responsibility and liability of sending States and the UN, on causality and legal decision-making, and on the implications on future peace missions. Such debates will, however, be put in perspective by the special circumstances of this case. And although the Mustafić family will now be granted compensation, their loss – and the losses of many others – cannot possibly be undone or relieved.