The ghosts of Srebrenica reappear

Almost ten years after Bosnian Serb forces massacred nearly eight thousand Bosnians in Srebrenica, their ghosts continue to prick the conscience of the powerful western countries in charge of protecting them under the UN banner. Civil actions have recently been filed in the Netherlands and France to try and gain recognition of collective responsibility and to claim compensation for victims. While one case is being brought against the UN in France, a turning point in the search for collective legal responsibility in the Netherlands has been reached. In a decision of 28 October, an appeals court allowed the relatives of people killed in Srebrenica in 1995 to examine six high-ranking Dutch officials as witnesses in a preliminary procedure against the Dutch state. Among the witnesses to be called is former Minister of Defence Joris Voorhoeve and members of the military chain of command of the Dutch battalion in Srebrenica under the UN flag, including Thomas Karremans, head of the Dutch UN battalion (Dutchbat).
The preliminary hearing, a date for which has not yet been set, will give them the opportunity to find out whether there is a basis to hold the Dutch state responsible for the failure of Dutchbat to protect the Srebrenica safe haven. The principal claimant, Hasan Nuhanovic, was working as a translator for the battalion at the UN compound when the enclave fell into the hands of the Bosnian Serb troops. He brought his brother and parents to the compound for safety. Two days later, the Dutch soldiers forced them to leave the compound and they were deported by the Bosnian Serbs. They have been missing and assumed dead since then. Nuhanovic is holding the Netherlands responsible for not evacuating his parents and brother, for facilitating their deportation by sending them from the compound and for failing to alert the UN to the human rights breaches committed on a massive scale in and around Srebrenica.

Responsible, but not guilty

The Dutch state successfully argued before the district court that Dutchbat had acted completely under the command and control of the UN and that both the Dutch Institute for War Documentation (NIOD) and the Parliamentary inquest had sufficiently examined witnesses. However, on appeal the judges took the lead from the report «Responsibility for wrongful acts in UN peace-keeping operations» published on 14 February 2002 by the Advisory Council of International Affairs, a permanent advisory committee of the Dutch government. The report considers that there are two exceptions possible to the principle that the UN is exclusively responsible for UN peace support operations. First, the situation where the state has interfered in the UN command and control and second, when the state has transferred powers to the UN without guarantees that the Geneva Conventions would be honoured.
At the International Criminal Tribunal for the former Yugoslavia (ICTY), criminal responsibility is attributed to individuals for the crimes committed in the Srebrenica area. This extends to former president Slobodan Milosevic, currently on trial, and the Bosnian Serb general Radislav Krstic, who was sentenced to 35 years\' imprisonment for complicity in genocide.
As for governments, their apologies, however important, have not been followed up by concrete acts. Although the Republika Srpska authorities admitted responsibility on 10 November for the massacre of 7800 people, it has not yet taken steps to compensate the victims. Kofi Annan\'s report on the role of the UN in Srebrenica, albeit full of self-incrimination, has had no legal repercussions at all. And even though Dutch Prime Minister Wim Kok apologised for the errors committed in Srebrenica and his entire cabinet resigned [after the NIOD report in April 2002], he explicitly stressed that there was no \'guilt\' on the part of the Dutch government.

Nuhanovic\'s initiative places the issue into the laps of judges

With respect to the role of the Dutch state, Nuhanovic\'s initiative has taken the issue out of the hands of the politicians and the parties responsible and placed them into the laps of civil law judges. As for the UN\'s role, the same spirit motivated a group of Srebrenica survivors to file a suit to a French court in Paris last week to obtain a ruling on the organization responsibility. Counsel for the 329 survivors, Agnès Casero, claims that diplomatic immunity in such cases only protects UN personnel and not the institution itself.