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2017 | The State of The Netherlands, Appeals Court of The Hague, Decision in the case of the Mothers of Srebrenica Foundation

On 27 June 2017, the Dutch Court of Appeal in Den Haag awarded reparations to family members, known as the ‘Mothers of Srebrenica’, of 350 Bosniak men and boys who were evacuated from the UN compound on 13 July 1995. This was an appeal against the ruling by the District Court of The Hague on 16 July 2014. The Appeals decision is currently only available in Dutch, but the English version will be posted on this site as soon as it becomes available.

The Appeals Court found that the Dutch battalion who were responsible for the protection of the refugees should have offered the remaining men the choice not to leave the compound, given that, by 13 July, the Dutch had become aware that there was a grave risk that male refugees would be subjected to degrading and inhumane treatment and/or summary execution. The Court considered that allowing the men to have remained inside the compound could not have guaranteed their safety, but would have given them at least a better chance of surviving. The Court estimated this chance at 30%, and found that, by its omission the State had robbed the male refugees of that 30% chance. The Court ordered that the State should pay compensation to the families of the men, to the extent of 30% of the damages suffered.

The Court also found that, by forming a human corridor – intended to avoid chaos and ensure the safe approach of all the refugees under their supervision to the evacuation busses –  Dutchbat soldiers had facilitated the separation of the males from the female refugees and were aware this was happening. The Court judged that the risk of ensuing chaos should have weighed less, in the deliberations of the Dutchbat commanders, than the known risk of grave harm to the male refugees. It held that not forming the refugees into groups, and having them pass through this corridor, may have given the men a better chance of survival, and that, with their knowledge of the grave risks faced by the male refugees, the Dutch contingent should have ceased providing any assistance whatsoever to the evacuating forces.

However, it could not be established, that allowing the refugees to approach the busses in whichever way they could, would have thwarted the continued evacuation by the Bosnian Serbs, or even saved the male refugees ultimately. Thus, there was not a sufficient causal link between Dutchbat’s management of the evacuation and the ultimate fate of the male refugees, for compensation to be awarded. Nevertheless, the Court held that Dutchbat had acted unlawfully, by facilitating an operation by the Bosnian Serbs that was in violation of Articles 2 (right to life) and 3 (prohibition of torture) of the European Convention on Human Rights. The Court held that a declaration to this effect shall be made by the Court. This constitutes the reparation known as ‘satisfaction’, being a public acknowledgement of wrongdoing.

As a reparations case, this decision is important in several respects. Firstly, the Appeals Court emphasised, confirming the position of the District Court of The Hague, that while ever the Dutch Battalion was under the effective control of the UN, the State of the Netherlands could not be found liable for the conduct of the soldiers. Liability of the State could only ensue after the UN operation was over and the State now took on executive decisions, together with commanders on the ground, regarding the conclusion of their operation in Srebrenica. Secondly, the decision shows the Dutch Appeals Court willing to (re)consider, in great detail, many individual components of Dutchbat’s handling of the evacuation of refugees from their compound, once that evacuation had been negotiated with the Bosnian Serb forces under Radko Mladic. It thus confirms that conduct by military forces during war time may be closely scrutinised, not only by criminal courts but also by civil courts, and that unlawful conduct of soldiers can be attributed to the sending State, and become the subject of an order for reparations. Nevertheless, the plaintiffs are likely to be disappointed by this decision. On the one hand, the District Court of The Hague held that the decision to create a human corridor for the passage of the refugees to the busses was not unreasonable or wrongful. The Appeals Court reversed this part of the earlier ruling. However, the District Court had awarded the plaintiffs full damages, in respect of Dutchbat’s enabling the evacuation of the remaining male refugees from the compound on the afternoon of 13 July. The Appeals Court has now reduced the extent of the State’s liability for damages to 30%, considering that this better reflects the chance the male refugees realistically had of a better outcome, had the Dutch allowed them to stay in the compound.

Epilogue

The Dutch State has announced to bring an appeal to the Supreme Court of the Netherlands against this judgement. When deciding the case, the Dutch Supreme Court is required by law to base its deliberations on the facts as established by the lower court and can, apart from taking formal decisions (e.g. inadmissability of the case) decide to either dismiss the appeal, rendering the Appeal Court’s judgment final and binding ór quash the Appeals Court’s judgment. In the latter situation, the case is usually referred back to a Court of Appeal in order to review the case, in whole or in part, again. The Supreme Court only passes final judgment if no significant questions of fact remain to be decided.