The Srebrenica Judgment II: the illegitimacy of Dutchbat’s conduct
This blog explains the District Court’s decision on the illegitimacy of Dutchbat’s conduct during and in the aftermath of the fall of Srebrenica. It also shows the problem faced when deciding cases like this in national courts based upon national law.
Some time ago I posted a blog on the first part of the Srebrenica Judgment of 16th July by the District Court in The Hague, which dealt with the effective control over Dutchbat’s conduct. This blog is about the second part of the Judgment (translation), in which the District Court rules upon the illegitimacy of Dutchbat’s conduct in relation to the fall of Srebrenica.
The question for the Court to decide is whether Dutchbat’s conduct constituted an unlawful conduct in the sense of art. 6:162 Dutch Civil Code, whereby international norms (such as the mandate of Dutchbat, the Genocide Convention and universal legal principles) were used to define the standard of care. In order to establish unlawful conduct, the Court first determined whether Dutchbat, given what was known to those in command of Dutchbat, could have acted and decided the way it did. Secondly, it needed to establish the causal link between Dutchbat’s conduct and the damage of claimants. In the Court’s words: ‘we have therefore to examine whether with a sufficient degree of certainty it may be established that the men from the safe area would not have been killed without the unlawful actions of the State.’
With respect to several allegations relating to conduct that took place outside the mini safe area, the Court ruled that Dutchbat could reasonably have acted and decided the way it did.
With respect to allegations relating to Dutchbat’s conduct after the fall of Srebrenica and on the compound of Dutchbat, the Court ruled that Dutchbat could have provided the United Nations with more information regarding crimes against male refugees. However, the Court decided that the causal link between damage and conduct was missing, since it was clear that NATO and the UN would not have acted when they were provided with all the relevant information, and the Bosnian men would not have been saved.
With respect to the deportation of male refugees in the late afternoon of 13 July 1995, the Court ruled that this was unlawful conduct and, moreover, that the lives of those approximately 300 men might have been saved if they could have stayed on the compound. Consequently, the Dutch state is liable for damages resulting from the deportation of male refugees from the compound.
Other conduct of Dutchbat was concluded to have been carried out or decided in all reasonability, or was not illegitimate in relation to claimants.
It is this second part of the Judgment that in my opinion is the most problematic, mainly because the Court had to decide this case on the basis of Dutch civil law. As explained above, the Court did not only rule upon the illegitimacy of the conduct of Dutchbat, but also on the causal link between the conduct of Dutchbat and the damage incurred by claimants. As a result the Court had to decide whether the UN (or NATO or individual states) would or would not have acted when they were provided with all the information available. Even when this could be established with a high degree of certainty – which in this particular situation might well be the case - it is unsuitable that a national Court has to speculate upon a matter which is the responsibility and discretionary power of an international organization entrusted with that task, in this case the very important and exclusive task of the UN to maintain international peace and security. The District Court indirectly assessed decisions that are the exclusive responsibility of the United Nations. It is my opinion that the Court should have refrained from this decision, even if this would mean that the Court could not conclude on this issue (it still could conclude on the illegitimacy of the deportation of male refugees from the compound, as this was not dependent on the assessment of UN decisions). In my view it is correct that in the past both national and regional Courts approached cases involving Chapter VII responsibilities of the United Nations with great care.
To conclude, this case once more shows the need for an international procedure for the settlement of claims arising from peacekeeping missions, not only for claims against the United Nations, but also for claims that deal with the (shared) responsibility of contributing member states, as already comprehensively argued by Schrijver (and more extensively in Dutch).