The Hague Court of Appeal on Dutchbat at Srebrenica Part 1: A Narrow Finding on the Responsibilities of Peacekeepers

Tom Dannenbaum is a Graduate Associate in the Law and Public Affairs Program at the Woodrow Wilson School of Public and International Affairs at Princeton University. He is author of Translating the Standard of Effective Control into a System of Effective Accountability: How Liability Should be Apportioned for Violations of Human Rights by Member State Troop Contingents Serving as United Nations Peacekeepers, 51 Harv. Int’l L.J. 113 (2010)

Introduction:

This summer, the Dutch Court of Appeal in The Hague issued simultaneous and almost identical rulings in two crucial lawsuits regarding the actions of U.N. peacekeepers during the Srebrenica genocide – Nuhanović v. The Netherlands and Mustafić-Mujić et al v. The Netherlands. The cases involve civil claims with respect to the deaths of four Bosnian civilians in the Srebrenica genocide. The victims were killed by Bosnian Serb forces after being evicted by the Dutch battalion (Dutchbat) of UNPROFOR from the U.N. compound at Potočari on the 13th of July 1995. The Court of Appeal decided that Dutchbat acted unlawfully in evicting two of the male victims, that this triggered legal responsibility for the deaths of all three male victims (but not the sole female victim), and that the wrongs could be attributed to the Netherlands.

In this post, I provide a brief description of the procedural and factual background to the case and address the legal issue of Dutchbat’s wrongdoing. Later this week, I will address the potentially more consequential issue of the attribution of that wrongdoing to the Dutch state.

The Court’s analysis of Dutchbat’s wrongdoing has two key features. First, the Court applied human rights obligations abroad. However, it did not do so by finding the relevant treaties to have extraterritorial effect. Instead, it found (i) that the ICCPR had been incorporated into the domestic law of the host state (Bosnia and Herzegovina) and (ii) that the relevant provisions of the ICCPR and ECHR were rules of customary international law that were binding extraterritorially (whether or not the treaty obligations themselves would extend abroad). Second, the ruling characterized Dutchbat’s wrongdoing narrowly: (i) relying on the eviction of the victims from the U.N. compound, not on any responsibility to protect those already outside the compound, and (ii) noting that since the victims were the last persons to be evicted, the judgment provided no indication of whether earlier evictions would have been unlawful (the probable consequences of eviction having become more apparent to Dutchbat over time).

Since the rulings do not differ on any significant matters of substance, the citations
below are to Nuhanović, but apply equally to Mustafić-Mujić.

Procedural History:

The Court of Appeal reversed the (again, almost identical) decisions by the District Court in The Hague (available here and here), which found that the actions of Dutchbat were attributable exclusively to the U.N. The District Court judgments had effectively denied relief to the plaintiffs. The U.N. was not a party to the case, but had already been found to be immune before the Dutch courts in another Srebrenica lawsuit – Mothers of Srebrenica v. the Netherlands & the U.N. (see District Court decision here and Appeal Court decision here; that case is now before the Dutch Supreme Court).

Factual Background:

Before considering the Court of Appeal’s rulings in Nuhanović and Mustafić-Mujić, it is worth providing a brief review of the facts, most of which are likely to be familiar to many readers. In an effort to protect civilians during the post-independence war in Bosnia and Herzegovina, the Security Council issued a series of resolutions in 1993 tasking the U.N. Protection Force (UNPROFOR) with protecting designated “safe areas.” Among these “safe areas,” was the Muslim enclave in and around Srebrenica. In October 1993, the Dutch government agreed to provide a battalion of the Dutch Airborne Brigade to serve in UNPROFOR, and in March 1994 the main force of Dutchbat deployed to the Srebrenica enclave under U.N. command. One company was stationed in the city; the others were quartered in the Potočari compound outside Srebrenica.

On the 5th of July 1995, Gen. Ratko Mladić’s Bosnian Serb Army (BSA) launched an attack on the Srebrenica enclave. On the 11th, the BSA took the city and the Dutchbat troops stationed there withdrew to the Potočari compound. This precipitated a mass exodus from Srebrenica, with 5,000 refugees admitted by Dutchbat into the compound and around 27,000 staying outside the compound in Potočari. That evening, UNPF command, in consultation with the Dutch government, determined that Dutchbat and the refugees would have to be evacuated. (UNPF was the new name for UNPROFOR adopted early 1995, with the latter name applying only to the force in Bosnia-Herzegovina). The Dutchbat commander, Lt. Col. Thom Karremans, immediately began discussing the evacuation of the refugees with Mladić. Over the following two days, the BSA removed all of the refugees outside and inside the compound via bus and truck, under the guise of facilitating the evacuation. Local U.N. employees with U.N. identity cards were allowed to stay in the compound and were to be withdrawn with Dutchbat.

The very last refugees to leave the compound into the hands of the BSA were the Mustafić and Nuhanović families. One of the male victims, Rizo Mustafić, had worked as an electrician for Dutchbat and expressed his wish that he and his family stay in the compound with the battalion. However, Mustafić did not have a U.N. identity card, so he and his family were forced to leave. The Nuhanović family also wished to stay. Hasan Nuhanović, the plaintiff in the other case, was considered a U.N. employee for the purposes of Dutchbat withdrawal, but his status did not extend to his parents or his brother. The Dutchbat commanders ultimately allowed Nuhanović’s father to stay because he had been part of a committee of Srebrenica civilians that had held consultations with Mladić. However, it evicted his mother and his brother. His father decided to leave the compound with them. Hasan Nuhanović remained with Dutchbat.

Rizo Mustafić and the three evicted members of the Nuhanović family were subsequently killed by Bosnian Serb forces or paramilitaries, as were the vast majority of the “able-bodied” (16-60 year old) male refugees who were transported from the Potočari compound and surrounding area by the BSA.

Hasan Nuhanović and the relatives of Rizo Mustafić sued the Dutch state for its part
in the four deaths. Prior to the recent judgment, the actions of Dutchbat had already made a significant political impact in the Netherlands. In 2002, the government of then Prime Minister Wim Kok resigned after a report commissioned by the government held it partly to blame for Dutchbat’s failure to protect the civilian population of Srebrenica. However, July’s Court ofAppeal judgment is the first judicial ruling to hold the Dutch state legally responsible for civilian deaths in the genocide.

The Wrongdoing:

The Court held that the alleged wrongful act was to be assessed under the law of Bosnia and Herzegovina, from which Dutchbat was not released and against which no
immunity applied in the current case (paras. 5.5, 6.3). However, pursuant to article 3 of the Bosnian Constitution, treaties to which Bosnia and Herzegovina is party have direct effect. This allowed the Court to apply the relevant provisions of the ICCPR (articles 6 and 7) directly (para. 6.4).

More interestingly, the Court also found the authority to

“test the alleged conduct against the legal principles contained in articles 2 and 3 ECHR and articles 6 and 7 ICCPR (the right to life and the prohibition of inhuman treatment respectively), because these principles, which belong to the most fundamental legal principles of civilized nations, need to be considered as rules of customary international law that have universal validity and by which the State is bound. The Court assumes that, by advancing the argument in its defense that these conventions are not applicable, the State did not mean to assert that it does not need to comply with the standards that are laid down in art. 2 and 3 ECHR and art. 6 and 7 ICCPR in peacekeeping missions like the present one.”(Para. 6.3) [emphasis added].

Thus, without addressing the thorny issue of the extraterritorial effect of the relevant
treaties (elaborated anew days later with respect to the ECHR by the Grand Chamber in Al-Skeini v. the United Kingdom), the Court was able to apply human rights standards to the extraterritorial acts of the state pursuant to a combination of local domestic implementation and customary international law.

The Court avoided considering the more politically incendiary argument that the Netherlands had violated article 1 of the Genocide Convention by failing to prevent the killings in question, noting that the above legal standards were sufficient to find in the plaintiffs’ favor on the relevant claims. (para. 6.22).

In applying these legal standards, the Court defined the battalion’s failings in narrow terms, giving little indication as to whether the holdings in these two cases might presage the success of litigation on behalf of other Srebrenica victims against the Netherlands, or, indeed, lawsuits regarding the failures of peacekeepers to protect civilians more generally.

The plaintiffs had alleged several ways in which Dutchbat’s actions triggered liability for the deaths in question. Those with broadest potential impact beyond the current case included the claims that “the State failed to take action” when Hasan Nuhanović’s father and brother were separated from his mother “which took place before the eyes of the Dutch battalion” [the same claim was raised with respect to Mustafić] and that “the State did not report the separation between the men and women and the other violations of human rights that it observed and that were a harbinger for genocide.” (Para. 6.1)

More narrowly, the plaintiffs claimed, “the State refused to include [Nuhanović’s brother] in the list of local personnel, and as a result the State did not include him in the evacuation of the Dutch battalion” and “the State sent [Nuhanović’s brother], and therefore [his father], away from the compound.” (Para. 6.1) [Again the same claims were made with respect to Mustafić]. The Court found the state liable for the three male deaths on these narrower grounds, and therefore declined to consider the question of whether the battalion had a duty to intervene when the able-bodied male refugees were being separated visibly outside the compound (para. 6.22). This obviously significantly limits the relevance of the rulings, both with respect to litigation regarding the deaths of the many refugees who never entered the Potočari compound (see, e.g., Mothers of Srebrenica) or who left it voluntarily, and with respect to potential litigation regarding the failure of peacekeepers to protect civilians in other contexts.

Moreover, it is not certain that relatives of even those other able-bodied men that were evicted from the compound would achieve the success of the plaintiffs in this case. The Court held that Dutchbat’s action in evicting the men triggered liability for the three deaths because incidents of mistreatment or killing of able-bodied male refugees by the BSA outside the compound were known by Dutchbat commander Karremans and/or his deputy Rob Franken and were so “alarming” that the commanders “reasonably could not have drawn any other conclusion than that the able-bodied men that were going to leave the compound from that moment to be ‘evacuated’ by the Bosnian Serbs, ran the real risk of being killed or at least of being subjected to inhuman treatment.” (Para. 6.7). These alarming incidents accumulated over the period from 12 July to the afternoon of 13 July (para. 2.27), creating sufficient warning of the danger to male refugees “at the latest” shortly before the Nuhanović and Mustafić families were evicted in the evening of 13 July. (Para. 6.7).

The potential application of this reasoning to other refugees who were evicted from
the compound is limited because by the time of the Nuhanović and Mustafić evictions, “[a]ll other refugees had left the compound.” (Paras. 2.29, 6.7). The Court emphasized this timing difference in stating explicitly that it should not be misinterpreted as making any judgment about the deaths of any of the other refugees (para. 6.11). However, a number of the relevant “alarming incidents” occurred on 12 and early 13 July (paras. 2.27, 6.7), suggesting that there may be a strong basis for suits against the Netherlands regarding the deaths of any male refugees who were told to leave the compound against their will on 13 July. In total, 239 of the approximately 8,000 men killed at Srebrenica had been under Dutchbat protection in the compound prior their deaths at the hands of the Bosnian Serbs.

Having relied on Dutchbat’s role in evicting the men to establish liability, the Court
explained that although Nuhanović’s father was not forced to leave the compound and so was not wronged directly, his “death may be considered to be the result of the wrongful acts with respect to [Nuhanović’s brother] and therefore may be attributed to the State. After all, the Court deems it understandable and predictable that, under the given circumstances, [the father] would choose to go along with his minor son.” (para. 6.20). The claim regarding the death of Nuhanović’s mother was quickly dismissed on the grounds that “being a woman she had nothing to fear from the Serbs,” so there was no reason that Dutchbat should have kept her in the compound (para. 6.20).

The fact that the Nuhanović and Mustafić families left last also relieved the Court of considering the relevance of Dutchbat’s limited food, water, and other resources because by the time of the finalization of the Nuhanović and Mustafić evictions, the issue facing Dutchbat was whether to keep the two extra men, not whether to keep the entire refugee population (para. 6.12).

A final point worthy of note with respect to the wrongdoing is the Court’s finding that the battalion’s duty to keep the Nuhanović and Mustafić was not voided by the possibility that doing so carried some risk to Dutchbat members. Specifically, the Court held that “considering the great interests” at stake for the victims, the “possible risks” to Dutchbat associated with taking them with the battalion as it withdrew “in reasonableness should not have resulted” in the failure to do so (para. 6.18). Whether the battalion had a duty to take the far greater risk of intervening with force in order prevent the genocide is, of course, a more complicated question and one the Court avoided answering.