# Court:  UN Not Immune in Srebrenica Victim Litigation



## The Bread Guy (5 Dec 2007)

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*Srebrenica massacre: UN not immune*
A surprise decision by a Hague-based district court rules that the UN does not have legal immunity in a lawsuit filed by the victims of the 1995 massacre in Bosnia and may have to answer for its failure to prevent genocide.
Anes Alic, ISN Security Watch, 5 Dec 07
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On 27 November a district court in The Hague, Netherlands unexpectedly dismissed the UN's legal immunity in the case of more than 6,000 families of the victims of the 1995 massacre in the eastern Bosnian town of Srebrenica who were suing the world body and the Dutch government for failing to protect them.

The ruling represents a legal and historical precedent in the first ever lawsuit against the UN and will presumably initiate additional lawsuits from former war zones around the world in which the UN operated peace missions.

The court also dismissed the Dutch government's demand that the case be dropped after the UN invoked its legal immunity and said it would not take part in the proceedings.

UN representatives failed to appear before the court in June, claiming immunity, though the world body did acknowledge the survivors' right to see justice served. Still, the UN has rejected the court's 27 November decision.

Semir Guzin, a Bosnian lawyer representing the victims of Srebrenica, told ISN Security Watch on Tuesday that he was surprised by the decision, as he had expected his clients would be forced to withdraw the case against the UN.

"For the first time in history, the UN will be involved in a process in which they will have to explain their moves and actions, which were plenty bad in Srebrenica," Guzin said.

Munira Subasic, from the Srebrenica Mothers Association, expressed disbelief as well, telling ISN Security Watch that she had not expected justice to win out over politics in this case.

"The UN has a duty to prevent genocide. An appeal to immunity in a case of genocide, as in the Srebrenica drama, is irreconcilable with the UN's own objectives, and its international obligations," a member of the legal team representing the plaintiffs, Marco Gerritsen, told local media.

In April 1993, Srebrenica was demilitarized and placed under UN protection.

As Bosnian Serb wartime leader Radovan Karadzic and his army commander Ratko Mladic attacked the town in July 1995, only 450 lightly-armed Dutch peacekeepers were in place to protect civilians.

A Dutch battalion serving with the UN peacekeeping mission in Bosnia was sent to Srebrenica in 1993 to protect the populace there. On 11 July 1995, they were easily disarmed by the Bosnian Serb army.

Women and children found shelter at the Potocari UN compound near Srebrenica, and were later transported to territory controlled by Bosnian Army, while some 13,000 men and boys fled to the forests in an unsuccessful attempt to reach territory controlled under Bosnian Army control. The failure enabled Bosnian Serbs to capture and slay up to 8,000 Bosniak men and boys.

_In it for the long haul_

In 2004, the Srebrenica victims' families handed Dutch authorities a proposal for an out-of-court settlement of €2 billion (US$2.9 billion). During evidence-gathering civil hearings in early 2005, the Dutch government rejected a share of the responsibility.

After several years of attempting to negotiate an out-of-court settlement with the Dutch government and the UN, 14-strong Bosnian and Dutch legal team representing the victims' families filed a civil lawsuit in June this year against the Dutch government and the UN, seeking compensation for failing to prevent genocide.

The 228-page complaint accuses Dutch troops mandated by the UN to secure Srebrenica of abandoning their positions when Bosnian Serb paramilitary forces approached on 11 July 1995 and handing thousands of men and boys over to be executed.

The lawsuit, prepared over the past six years, alleges that although the UN was aware of a pending Bosnian Serb military offensive at least two weeks before it began, neither the Dutch forces nor the UN took steps to save the local population of some 40,000, and were instead concerned only about the well-being of their own forces and had been instructed to use weapons only in self-defense.

Lawyers representing the plaintiffs are basing their case on Dutch, French and UN reports on the Srebrenica massacre. The lawyers say they will prove that the Dutch state and the UN were responsible for the fact that the enclave fell to Bosnian Serb forces and genocide indeed took place and therefore liable.

Lawyers say the purpose of the lawsuit is to establish the responsibility of the Dutch government and the UN in the Srebrenica genocide. If the responsibility is proved, lawyers will start the process of setting the sum for the damages, a proposed amount of €2 billion from both the UN and the Netherlands.

After the filing of the lawsuit in June, the UN claimed immunity from legal action, citing Article 2 Section 2 of the Convention on the Privileges and Immunities of the UN.

"The survivors of the Srebrenica massacres are absolutely right to demand justice for the most heinous crimes committed on European soil since World War II […] but this immunity in no way diminishes the UN's commitment to assist the people of Srebrenica," UN spokeswoman Marie Okabe told a press conference earlier this year.

Okabe also said that the UN was learning from its mistakes and would not rest "until it's fully equipped to prevent such tragedies from occurring in future within its peacekeepers' midst."

_Transferring blame_

In the meantime, Dutch officials have transferred the blame to the UN, which allegedly failed to provide sufficient support to defend the town, saying that compensation claims should be directed at the perpetrators of the massacre, Bosnian Serbs, whose several high-ranking officers have been sentenced for their roles in the Srebrenica massacre. Dutch military personnel complained that they had taken on the mission when no one else would, and that they were out armed and outnumbered.

Dutch authorities argue that the UN abandoned the peacekeepers by failing to give them air support when their observation post near Srebrenica was attacked, despite the fact that the soldiers stationed there had requested air support on nine occasions. The UN claims that its office in Sarajevo refused air support in Srebrenica because the Dutch commander there failed to fill the request form correctly.

Still, lawyers representing the victims say this claim is false and that they have evidence that then-UN chief of staff Dutch General Cees Nicolai turned down the offer of air support, and that his decision was backed by Joris Voorhoeve, the Dutch defense minister at the time.

Nicolai served as a witness in late November at the trial of seven Bosnian Serb military and police officers charged with crimes in Srebrenica and the nearby town of Zepa. Nicolai said the UN leadership had hesitated too long in approving the use of the NATO air force.

He also said that after the Bosnian Serb army in late May 1995 took some 350 Dutch peacekeepers hostage around Sarajevo in response to NATO air strikes against Serb ammunition depots, the UN command introduced restrictive guidelines for air support.

According to Nicolai's testimony, the guidelines specified that it was better for the blue helmets to withdraw if the UN checkpoints came under attack than to call in NATO air strikes. Nicolai said that General Ratko Mladic threatened to attack the Dutch battalion compound where thousands of civilians had already gathered if NATO launched air strikes.

General Rupert Smith, the commander of UN forces in Bosnia, and Ratko Mladic signed an agreement in Belgrade on 19 July 1995, at a time when thousands of Bosniak men had already been slaughtered, giving the Dutch soldiers a guarantee that they could safely withdraw from the enclave with all of their equipment and weapons, which happened two days after the signing.

The victims' lawyers say that air support was obstructed for fear that troops could fall victim to friendly fire and because of information that Bosnian Serb forces had already disarmed and captured 15 Dutch soldiers days before the offensive. The lawyers also said that the Dutch public would not have accepted causalities in a country where their presence was dubious.

The air support eventually arrived, but too late. NATO sent two planes to shell the Bosnian Serb positions, and according to Guzin, successfully targeting only one abandoned tank.

However, a previous Dutch administration accepted blame for the failed Bosnian peacekeeping mission. The entire government of former prime minister Wim Kok resigned in April 2002 following a report by the national Institute for War Documentation, which placed partial blame for Srebrenica with the government.

The UN also admitted its failure to protect the Bosniaks of Srebrenica as well in a 1999 report released by then-UN secretary-general Kofi Annan. "The UN Security Council should have approved more decisive and forceful action to prevent the unfolding horror in Bosnia and that 'safe areas' should never be established again without credible means of defense," the UN's report said.

The 155-page report said the UN had been wrong to declare it would only use NATO air strikes against the Serbs as a last resort. Annan criticized the Security Council staff at the UN headquarters and UN peacekeepers in Srebrenica.

_A lucrative tragedy_

The Srebrenica tragedy has become a very lucrative business, especially for lawyers. A Sarajevo-based lawyer told ISN Security Watch on condition of anonymity that dozens of Croatian, Serbian and Slovenian lawyers as well as attorneys from western Europe have opened offices in Bosnia to represent Srebrenica victims.

A few years back, the most sought-after case by lawyers was defending war crimes indictees at the UN's Hague-based International Criminal Tribunal for the former Yugoslavia (ICTY) - cases that brought in sizable incomes. However, the ICTY trials have lost their initial luster with only four more war criminals pending arrest - among them Karadzic and Mladic, whose arrests are less and less on the international community's agenda.

In Sarajevo alone, where during the 1,425 days of siege when 11,000 civilians were killed and 50,000 wounded, there are hundreds of individual lawsuits against Republika Srpska, Bosnia's Serb-dominated entity. According to the unnamed lawyer, plaintiffs usually demand €120,000 (US$176,000) for each case against individual civilian death.

Srebrenica lawsuits remain a major market, especially since the International Court of Justice (ICJ) ruled in February that the mass killings of Bosnian Muslims in Srebrenica was an act of genocide and named the Republika Srpska police, army and political structure as perpetrators. The ICJ gave the Srebrenica survivors more legal weight and a stronger case, especially as both the UN and the Netherlands have admitted to their mistakes.

Since then, there have been several major cases and countless individual ones regarding the reimbursement of Srebrenica victims' relatives, suing Republika Srpska, the Dutch government and the UN.

In March this year, Bosnia's top human rights court ordered Bosnian Serb authorities to pay more than US$2 million in compensation to victims of the massacre.

_Anes Alic, based in Sarajevo, is ISN Security Watch's senior correspondent in Southeastern Europe and the Executive Director of ISA Consulting._


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