THE IMPORTANT ruling on Tuesday by a Dutch appeals court that the Dutch state is legally liable for the 1995 deaths of three Bosnian Muslim men in Srebrenica will be read with considerable interest, and not a little concern, by the legal advisers to governments with troops contributing to UN missions. It represents a significant and surprise victory for the families of the three after years in the courts. It may yet open the Dutch government up to substantial compensation claims from the families of hundreds of men who were handed over to Bosnian Serbs and their deaths instead of being protected in a Dutch military compound.
“The Dutchbat had been witness to multiple incidents in which the Bosnian Serbs mistreated or killed male refugees outside the compound. The Dutch therefore knew that ... the men were at great risk if they were to leave the compound,” the court said. It ruled that although the Dutch soldiers were operating under a UN mandate, liability arose because they were under the “effective control” of senior Dutch military and government officials. Families are also separately seeking referral to the European Court of Justice of the principle of “sovereign immunity” which protects the UN from being sued.
The scope of any precedent set this week – an appeal is still possible – may be limited, however, by the specific circumstances of the three litigants. All had particular work or other connections to the Dutch force which may be found by the courts to have created a particular legal onus on it to protect them not as applicable to others.
The issue has been highly controversial in the Netherlands because of anger at the perception that the lightly armed Dutch troops, operating under a UN mandate that ruled out proactive armed intervention, had completely failed to offer any humanitarian protection in the face of what was clearly going to be a massacre of civilians. But also because the UN command denied them crucial air support to block the Serb advance. A government resigned in 2002 after an official report concluded it had sent Dutch troops on a “mission impossible”.
The legal issues raised may be important to other countries with UN contingents should their own courts follow the Dutch precedent, and will also potentially pose big problems for UN missions if the ECJ eventually rules against sovereign immunity. A legally enforceable obligation to protect vulnerable civilians, however theoretically desirable, would pose a huge challenge to the UN’s many overstretched missions in chaotic war zones around the world.