Inside the legal battle of the Mothers of Srebrenica against the Dutch State
In this article, Marco Gerritsen and Simon van der Sluijs of law firm Van Diepen Van der Kroef Advocaten, leading counsel for the Mothers of Srebrenica, give an inside view on their clients’ proceedings against the Dutch State.
11 July 2015 marks 20 years since the first genocide in Europe after World War II took place. In the mountain town of Srebrenica in eastern Bosnia, over 8,000 people were murdered despite being under the protection of the United Nations Protection Force (UNPROFOR). For 20 years the relatives of the victims have sought recognition and justice. Though the main actors in this massacre have been brought to the International Criminal Tribunal for the former Yugoslavia (ICTY), the role of the State of the Netherlands (the State) and the Dutch UNPROFOR battalion (Dutchbat) is still subject to a drawn-out legal battle.
In 2006, on behalf of approximately 6,000 relatives of the victims, a group known as the Mothers of Srebrenica, we requested a meeting with the Dutch government to discuss how to deal with this delicate matter. Instead of taking our outstretched hand, the government referred us to the courts. Since then, every attempt to have talks has been dismissed by the Dutch government.
In 2007, we filed a lawsuit against the UN and the State. In it, our clients charged that Dutchbat failed to protect the population under its care, did not admit the population to the UN compound in Potocari, and did not report the war crimes they witnessed; rather, Dutchbat cooperated with Bosnian Serbs in deporting the Muslim population. The charge also noted how in the days before Srebrenica’s fall, the State ordered Dutchbat to ensure that the highest priority was the safety of Dutchbat itself.
In 2012, the case against the UN ended with a verdict by the Supreme Court of the Netherlands. The ruling was that the UN has absolute immunity, thereby leaving no room to hold the international organization accountable and impairing our clients’ the right of access to court under article 6 of the European Convention on Human Rights. Crucially, because the UN did not appear as a party to the proceedings, the Dutch state was left to express a position on its behalf. It argued that the UN had absolute immunity and the Dutch judiciary was not competent to hear the case.
As such, the proceedings continued solely against the State, which, in turn, tried to evade a material decision about Dutchbat’s actions. The State argued that all actions should be attributed to the UN.
However, on 16 July last year, the District Court of The Hague ruled that the State is liable for losses suffered as a consequence of the deportation of, according to the court, some 320 men. On the afternoon of 13 July 1995, the group was expelled from the UN compound by Dutchbat, handed over to the Bosnian Serbs and subsequently killed by them.
But the State’s liability was denied for the nearly 2,000 men and boys – gathered in a space just outside the compound declared by Dutchbat to be a “mini safe area” – who were also handed over and killed. The court reasoned that from 11 July, the State had effective control over Dutchbat and is therefore accountable for the actions of Dutchbat. The court further reasoned that on the late afternoon of 13 July, in contrast to the situation two days earlier, the State knew there was a high risk that genocide could be committed. Dutchbat therefore should not have handed over these men and boys, said the court.
Considering this ruling, we did what we had done on several occasions prior: invited the State to discuss an out-of-court settlement – to no avail. Both parties filed appeals. In their appeal, the Mothers of Srebrenica argued that the State gave specific instructions to Dutchbat before, during and after the fall of Srebrenica that the safety of Dutchbat had absolute priority. We maintained that Dutchbat did not act robustly and avoided every military confrontation. Summary executions, torture, rapes and beatings were widespread but not reported to the world. For that reason, the State failed to respect article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide. Our clients’ appeal cites the ICTY’s 2 August 2001 ruling in the case of General Radislav Kristic, that deporting the population was not justified by the need to protect civilians’ safety or any military reason.
The grounds of the State’s appeal have yet not been filed.
A problem in the proceedings against the State lies in the State’s selective disclosure of information. By labelling important information as a state secret, the State has thus far filtered inconvenient matters. But secrets are difficult to keep and this one was recently broken when minutes of Dutch cabinet meetings held in July 1995 revealed that the State already had knowledge of the high risk of genocide on 11 July 1995.
To the frustration of our clients, the position of the State has been very formal, not addressing the very human dimensions of the case. To this day, the State has never acknowledged that it was wrong to prioritize the security of Dutchbat over the population it had to protect. The proceedings will not bring back their dead relatives. Still, the Mothers of Srebrenica have good hope that justice will prevail.
This article is written by by Marco Gerritsen and Simon van der Sluijs of law firm Van Diepen Van der Kroef Advocaten, leading counsel for the Mothers of Srebrenica and appeared on 7 juli 2015 in International Justice Tribune.
Procedure Den Haag