Courtside

Netherlands Court Dismisses Srebrenica Compensation Claim

Judges rule Dutch state not responsible for actions of UN Dutch troops deployed in Bosnia in 1995.

By Simon Jennings in The Hague (TU No 568, 12-Sep-08)

A lawsuit brought against the Netherlands by two Bosnian war victims’ families seeking compensation for the failure of Dutch troops to protect their relatives was rejected this week.

The United Nations, not the Dutch state, was responsible for any mistakes made by the Dutch battalion, Dutchbat, in the UN-protected enclave of Srebrenica in July 1995, according to the verdict read out by Judge Hans Hofhuis at the Hague District Court on September 10.

“The acts and omissions of Dutchbat during the evacuation [of Srebrenica] should be considered as those of the United Nations … The [Dutch] State cannot be held responsible for any breach of contract or wrongful act committed by Dutchbat,” said the ruling.

The lawsuit was filed by Hasan Nuhanovic, a Bosniak employed by the UN in Srebrenica as an interpreter, and the family of Rizo Mustafic, who worked for the UN as an electrician. Nuhanovic lost his mother, father and brother, while Mustafic has not been seen since Bosnian Serb forces overran the area.

More than 8,000 Bosniak men and boys were massacred by Serb forces in Srebrenica in July 1995, a mass killing ruled by both the International Criminal Tribunal for the former Yugoslavia, ICTY, and the International Court of Justice, ICJ, to have been genocide.

Both claimants argue that the Dutch state failed to protect their families, and also violated their human rights when Dutch soldiers forced them to leave the safety of the UN compound.

Speaking after the ruling, Nuhanovic expressed his disappointment at the end of the six-year case.

“None of the points which we have presented as evidence to the court over the last six years has been accepted. It has all been rejected. This is a total denial of all accusations presented by the two families,” he said.

All the core issues were “ignored” in the judgement, he added.

The crux of his case was that Dutchbat forced his relatives to leave the compound against their will on July 13.

“The moment of the forcible expulsion of refugees from the compound [by the Dutch troops] is not mentioned in the verdict at all,” he said. “I’m accusing [Dutchbat] of being active and this activity was in violation of the human rights of my family and other refugees.”

Both Nuhanovic and his lawyer Liesbeth Zegveld confirmed they would appeal the verdict in higher courts in the Netherlands, before taking it to the European Court of Human Rights, ECHR, if necessary.

Zegveld was also dismayed by the verdict.

“[It was] more than disappointing, I would say. The facts have lost [the case] and the conservative legal system has prevailed; a legal system that is not the system of our time, and which rules over the heads of victims in favour of states,” she said at the court.

According to Zegveld, bringing a case against the Dutch state was always going to be tough, since it was to be heard by Dutch judges in a Dutch court in the Netherlands.

“It’s not for nothing that Sierra Leone, Cambodia, Rwanda and the former Yugoslavia have all set up tribunals dealing with their war past in foreign countries for the reason that they want independent, impartial, neutral judges,” she said.

“My doubt is very much confirmed now that you can’t deal with this matter inside the Netherlands.”

But according to Andre de Hoogh, a senior lecturer in international law at Groningen University in the Netherlands, the judges’ ruling was sound. The order to evacuate the safe area came from the UN, not from the Dutch state, even though Dutch officials may have agreed with it, he said.

”I tend to agree with the position taken by the court that the Dutch did not interfere to such an extent that you can say that the conduct should be attributed to the Dutch rather than the UN,” de Hoogh told IWPR.

De Hoogh points out that the Netherlands has immunity before domestic courts beyond its borders. Yet he believes that even if it were possible to hear the lawsuit outside the country, it would not necessarily bring a different result.

“The real issue would still be whether the conduct concerned is attributable to the UN and not to the Dutch, so they might lose on the same grounds in a foreign [court] as they did in the Dutch court,” he said.

The claimants now have few options left in determining who was responsible for the deaths of their family.

While judges in this case effectively held the UN peacekeeping mission in Bosnia, UNPROFOR, responsible for the actions of Dutchbat, the UN has legal immunity, as was emphasised by a ruling in the same courtroom in June this year, in a case brought by the war victims’ association Mothers of Srebrenica.

The court ruled it had no jurisdiction to hear the compensation claim, in which the claimants accused the UN of failure to prevent the Srebrenica massacre, because the international organisation has immunity from the legal process.

“[The claimants’] family died, but you can go nowhere,” said Zegveld. “We have here a legal vacuum which is terrible.”

If the claim against the Dutch state had been successful, it could have had serious repercussions for future UN peacekeeping missions.

States “would not enjoy” being subject to the command and control of an international organisation, but at the same time being held liable for their own conduct, explained de Hoogh.

“If you set aside the present system [in which the UN is held accountable for its peace-keeping troops] then states will become increasingly hesitant to support peacekeeping operations,” he said.

Simon Jennings is an IWPR reporter in The Hague.