Dutch State bears very limited liability in 'Mothers of Srebrenica' case

The case
The case regards the events surrounding the fall of the city of Srebrenica on 11 July 1995 and the subsequent evacuation from Dutchbat’s ‘mini safe area’ in the days that followed. The main issue was whether the Dutch State could be held (fully or partly) liable to the surviving relatives of the Muslim men who were murdered at that time by Bosnian Serbs. The surviving relatives believe that Dutchbat did too little to repulse the Bosnian Serbs’ advance and protect the population. They also contend that Dutchbat acted unlawfully by cooperating with the evacuation of the refugees who had fled to Dutchbat’s mini safe area in Potočari. During the evacuation on 12 and 13 July 1995, the Bosnian Serbs murdered the male refugees after separating them from the other refugees.

The Hague Court of Appeal held that the State had acted unlawfully in two respects. First, during the evacuation on 13 July 1995, the State allowed the refugees to be guided to the buses in groups and through a sluice which made it easier for the Bosnian Serbs to separate the male refugees from the rest. Second, the approximately 350 male refugees who were found to be in the compound at the end of the afternoon on 13 July 1995 were not offered the option to remain at the compound. As a result, according to the Court of Appeal, this group of refugees was denied a 30 percent chance of avoiding abuse and execution. The State was thus held liable for 30 percent of the damages suffered by the surviving relatives.

Both the State and the surviving relatives instituted appeals in cassation.

Like the Court of Appeal, the Supreme Court rejected the State’s liability for Dutchbat’s acts until the start of the evacuation on 12 July 1995. Up to that point, Dutchbat was operating under the responsibility of the United Nations (UN). Under international law, that entails that the acts of the Dutchbat must be construed as acts of the UN, and not of the Netherlands. Therefore, the Dutch State cannot be liable for the events that led to the fall of the city of Srebrenica.

As the city of Srebrenica fell on 11 July 1995, approximately 25,000 refugees sought refuge at Dutchbat. Some stayed in the compound and some stayed in an adjacent area that was cordoned off with tape and armoured vehicles (collectively: the mini safe area). The conditions in the mini safe area were appalling. The UN and the State decided to evacuate the refugees and Dutchbat. From that point forward, the State exercised effective control over Dutchbat’s conduct and Dutchbat’s actions were attributable to the State. The refugees were evacuated under Dutchbat’s guidance starting on the afternoon of Wednesday, 12 July 1995. Starting on the evening of 12 July, Dutchbat knew that after the male refugees had been separated from the rest of the refugees by the Bosnian Serbs, they would be at real risk of abuse and execution. That knowledge thus existed when Dutchbat continued evacuating the refugees from the mini safe area outside the compound on the morning of Thursday, 13 July. In the judgment of the Supreme Court, the continuation of that evacuation was not wrongful. The fate of the refugees would not have been changed had Dutchbat stopped cooperating, because the Bosnian Serbs would have continued the evacuation in some other way. Discontinuing that guidance would not have affected the risk to the male refugees who remained outside the compound because they could not hide. Even if Dutchbat had stopped guiding the evacuation, therefore, the Bosnian Serbs would still have separated these men from the other refugees and taken them away. Dutchbat’s choice to continue providing guidance in order to prevent women and children from being trampled was not wrongful.

According to the Supreme Court, however, the State did act wrongfully in relation to the evacuation of the 5,000 refugees who were still at the compound itself in the late afternoon of 13 July 1995. Amongst those refugees were 350 men of whom the Bosnian Serbs were unaware because they could not see them. Dutchbat failed to offer these 350 male refugees the choice to stay where they were, even though that would have been possible. This failure on Dutchbat’s part denied these male refugees the chance to stay out of the hands of the Bosnian Serbs. That was wrongful because Dutchbat knew that the male refugees were in serious jeopardy of being abused and murdered by the Bosnian Serbs, and all possible action should have been taken to prevent such an outcome. The chance that the male refugees would have escaped the Bosnian Serbs had they been given the choice to stay was slim, but not negligible. During inspections, the Bosnian Serbs would almost certainly have discovered that male refugees had remained on the compound. They would have subsequently done everything in their power to deport them from the compound, with all the ensuing consequences. The chance of Dutchbat receiving effective support from the international community was slim. The Supreme Court estimates that the male refugees had a ten percent chance of escaping from the Bosnian Serbs, had they been offered the choice to remain in the compound. The Supreme Court estimated this chance at 10 percent, and thus more limited than the 30 percent chance arrived at by the Court of Appeal.

The State’s liability is thus limited to 10 percent of the damages suffered  by the surviving relatives of these 350 male refugees. These surviving relatives may claim compensation from the State.

Judgment

ECLI:NL:HR:2019:1284