Dutch Court Decision On Peacekeepers Shakes Up Humanitarian Law
July 13, 2011
By Irena Chalupa
In 1995, at the height of the war in Bosnia, the United Nations entrusted a lightly armed Dutch peacekeeping battalion with the task of protecting Srebrenica from a Bosnian Serb offensive.
The Bosnian Serbs, led by General Ratko Mladic, intimidated the Dutch battalion and gave guarantees of safety for the Bosnian Muslims. Mladic’s forces then proceeded to commit the greatest mass murder in Europe since World War II. The UN, the U.S. Congress, and two international courts have defined the killings as genocide.
Mladic, who was arrested by the Serbian authorities in May, is now on trial at the International Criminal Tribunal in The Hague.
On July 5, a Dutch appeals court ruled that the Dutch battalion (known as Dutchbat) failed in its duties to protect three Bosnian Muslim men from Srebrenica and that the government of the Netherlands bears direct responsibility for their killings as a result. The court awarded the plaintiffs compensation, though an amount has not been specified.
Dutch attorney Liesbeth Zegveld represents Hasan Nuhanovic, a former Dutchbat interpreter who lost his father and brother in the massacre, and the family of electrician Rizo Mustafic, who worked for the battalion and was killed when the Dutch peacekeepers handed him over to the Bosnian Serbs. All three of the men had sought refuge in a protected Dutch compound. Her clients decided to sue the government of the Netherlands for negligence in 2002.
In 2008, a lower court ruled that the Dutch government was not responsible for the deaths of the three men because the Dutchbat troops were operating under a United Nations mandate. Last week’s ruling negates that decision and sets a historic precedent, says Zegveld.
"It's a precedent in the sense that normally it's assumed that states contributing troops are not responsible for any wrongdoing but that the UN is," Zegveld says. "And this interferes with the assumption of attribution to the United Nations rule that, if a national state exercises effective control over the disputed facts, it can also be held responsible.”
Dutch attorney Axel Hagedorn, who represents the human rights group The Mothers of Srebrenica in a separate lawsuit, says that this latest decision establishes an important legal and a political precedent.
“[The court decision] shows that the court does not accept an overall denial of responsibility, which hopefully stimulates discussions about more attention for human rights within peacekeeping missions,” he wrote in an e-mail. “Therefore, it is also a big warning signal to the UN. They keep quiet the whole time and lose credibility."
Richard Dicker, the director of the International Justice Program at Human Rights Watch, says that the Dutch court’s decision is historic not only because it holds an individual state accountable for the tragic results of a UN peacekeeping operation. He says that the case also underscores the extent of the responsibility peacekeepers assume when they are deployed in the field to protect civilians at risk.
“I think one message -- or one hoped-for impact -- this decision will have," Dicker says, "is to make clear both to the United Nations Department of Peacekeeping operations, as well as the individual contributing states, that when they are deployed to protect civilians at risk, that is a serious responsibility that they have to carry out even at the risk of their own lives and well-being.”
Neither Dicker nor Hagedorn believes that the court’s ruling will have a negative impact on future UN peacekeeping operations. Instead, they say, it should encourage the UN to carry out those missions more forcefully and with greater diligence.
The Netherlands Embassy in Washington declined to comment on the court’s ruling. Floris van Hovell, counselor for public diplomacy at the embassy, told RFE/RL that the embassy is waiting for the government to take the next step. What that step will be remains to be seen. The Dutch government has three months to challenge the appeal court ruling.
In 2002, the Dutch government commissioned a report on Srebrenica from the Netherlands Institute for War Documentation, a state-sponsored research organization. The report blamed the Dutch government and senior military officials for failing to prevent the 1995 massacre, portraying the battalion’s soldiers and commanders as frightened and hesitant. The report brought down the government of then Prime Minister Wim Kok.
In 2002, says Lisbeth Zegveld, the government resigned because the country’s leaders felt responsible for Srebrenica but not guilty for it. The new decision, by contrast, firmly establishes that the government is not only responsible but also complicit in the massacre. Zegveld finds the government’s silence disturbing.
“Honestly, I find it quite shameful," she says. "Also for individual Dutchbatters who have, of course, a lot to carry with them. I do not envy them. I think in a way they are also victims, and I believe that their superiors, the Ministry of Defense, the government, or their commanders should have responded in one way or another to the judgment.”
Zegveld feels confident that any attempts to challenge the ruling will hold up in the country’s Supreme Court. Though the Dutch government may attempt to argue that it cannot be held accountable for the events in Srebrenica, she says, the fact is that it had control over its own compound and was thus responsible for the three men’s fate.
Semblance Of Hope
Ukrainian peacekeeper Serhiy Koroptsov served on five different UN peacekeeping missions, two of them in the former Yugoslavia during the period thousands of Muslims were being killed in Srebrenica by Ratko Mladic’s troops. Koroptsov calls the Bosnian Serbs “provocateurs” who guaranteed the safety of the Bosnian Muslims and then proceeded to kill them. He is certain that the Netherlands will appeal the court ruling.
“I don't want to equate arithmetic with the value of a human life," Koroptsov says. "But after all, if someone goes to court, then he enters into legal relations with the state. If the state sends peacekeepers abroad to take part in peacekeeping operations, all this is regulated. There were no violations of the rules of behavior or their professional responsibilities. That's why I think the state will appeal.”
While the recent ruling refers only to the three victims cited in the case, it has provided the relatives of other Srebrenica victims with a semblance of hope and a sense of justice. While the ruling does not endanger future peacekeeping missions, it has ramifications for the UN’s credibility as an organization that defends human rights, asserts Axel Hagedorn, who cites the growing number of scandals around UN peacekeeping operations in recent years. He hopes that the ruling will force the UN to clean up its act.
Copyright (c) 2011. RFE/RL, Inc. Reprinted with the permission of Radio Free Europe/Radio Liberty, 1201 Connecticut Ave., N.W. Washington DC 20036.
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