Case Watch: Peacekeepers, Liability and the Srebrenica Massacre

On September 6th, the Supreme Court of Netherlands found the Dutch government liable for the deaths of three men killed during the 1995 massacre of Bosnian Muslims in the town of  Srebrenica. The verdict is the completion of an eleven year fight for justice by Hasan Nuhanovic, a former UN interpreter who lost three family members at Srebrenica, and relatives of Rizo Mustafic, who died there. The ruling sets an important precedent: that states can now be held liable for its peacekeepers’ actions carrying out a UN mandate. It also opens up a door for other survivors to seek reparations for violations of human rights.

In 1993, at the height of the wars that erupted with the breakup of Yugoslavia, the United Nations Security Council designated Srebrenica a “safe area” and instructed the Bosnian-Serb forces to withdraw from the area. The Netherlands had contributed a Dutch battalion (“Dutchbat”) to the UN’s peacekeeping mission, which was stationed in the area. In the summer of 1995, Bosnian-Serb forces led by Ratko Mladic launched an offensive on Srebrenica, causing thousands of refugees to flee and seek protection within the nearby UN compound where Dutchbat was located.

Hasan Nuhanovic, an interpreter for the United Nations, along with his parents Ibro and Nasiha and brother Muhamed were among those who sought protection. Dutchbat evacuated Hasan because he was an UN employee. But Dutchat refused his family the same protection. Rizo Mustafic, an electrician employed by Srebrenica municipal authority, was assigned to work in Dutchbat compound. Unable to stay within the UN compound as they were not UN employees, Nuhanovic’s family and Rizo Mustafic all left the UN compound. They were subsequently killed, among the 7,000 victims killed by the Bosnian-Serb forces in Srebrenica.

Nuhanovic and relatives of Mustafic brought a civil lawsuit against the Netherlands in respect of deaths of their family members, seeking to hold the Dutch government responsible for the failure to prevent the Srebrenica killings and pay damages for their suffering. The Supreme Court (Court) agreed with the families and found the Dutch government liable. The Supreme Court reached its conclusion addressing two questions: 1) whether the conduct of Dutch troops under  U.N. mandate is attributable to the State and 2) whether Dutchbat’s decision not to evacuate the family members was wrongful.

The Court determined that, under international law, where a national unit (Dutchbat) has been seconded to an international organization (the UN), its conduct could potentially be attributed either to the State, the international organization, or to both (at para 3.9.3). The liability for the behavior depends on whether Dutchbat or the UN had “factual control over the specific conduct, in which all factual circumstances must be taken into account” (at para 3.11.3). The Court acknowledged that here both the UN and Dutch government exercised control over the troops, but found that during the transitional period after the fall and before the removal of the troops, the Dutch government exercised control over its troops, and could have prevented the conduct in question (i.e., the non-evacuation of Nuhanovic’s family members and Rizo) given the information known to Dutchbat’s commanders when they ordered the victims to leave the UN compound (at para 3.12.2).

The Court said that the Dutchbat knew of the serious consequences Hassan’s brother, Muhamed, faced upon leaving the compound and should have reassessed his request to stay (at para 3.5.3).  Further, the Court said that although the mission failed, and the Dutchbat could not have asserted control outside the compound, the Dutch government continued to exercise effective control over its troops’ conduct in the compound (at para 3.12.3).

The Court also affirmed the Court of Appeal’s findings that Dutchbat’s conduct was wrongful, stating that Dutchbat’s refusal to evacuate Muhamed to the safe area resulted in his death, and that this conduct was a violation of the right to life and the prohibition of inhuman treatment under the European Convention on Human Rights (EHCR) and International Covenant on Civil and Political Rights (ICCPR). The Court also found the State responsible for Ibro’s death explaining that given the circumstances, it was also foreseeable that Ibro would choose to accompany his minor son (at para 3.5.3). In regards to Mustafic, the Court concluded that the State’s failure to evacuate Mustafic to a safe area, despite the knowledge of the grave consequences, thereby resulting in his death, amounted to a wrongful conduct. (at para 3.5.3)  The Dutch government argued that the conduct could not be attributed to the state since the State did not exercise jurisdiction, for the purposes of the ECHR and ICCPR, over Srebrenica or Potocari, the neighboring village and a location of Dutchbat compound at the time of the massacre (at para 3.17.1). The Court rejected the argument and held that the state can exercise jurisdiction outside of its territory in exceptional circumstances.

The Court finally rejected the government’s argument that it should show judicial restraint given that neither international law nor domestic law provide for review of consequences of conduct of state troops within the context of a peacekeeping mission. It considered that such overreaching proposal was unacceptable, and that it should be allowed to review consequences of a conduct of troops in the context of a peacekeeping operation (at para 3.18.3).

Nuhanovic welcomed the decision stating: "In the future, countries might act differently in peacekeeping missions and I hope the lives of other people in the future will be saved because this mistake was admitted.”  While the Court stressed its decision limits the State’s accountability to unique circumstances, lawyers representing other victims’ families heralded the verdict as important step to accountability, seeing the verdict as precedent to reach a possible settlement for the families of 7,000 victims who perished in Srebrenica. But this decision also raises questions about the UN’s immunity and the future of peacekeeping, given its implications for countries who agree to provide troops to carry out a UN mandate.