The responsibility of the United
Nations in relation to the Bosnian
genocide in Srebrenica
Master’s Thesis Public International Law University of Amsterdam
Name: Charlotte Sousa de Andrade Passos Supervisor: Liesbeth Zegveld
Date: 07-01-2017 Final word count: 13147
Despite being declared a “safe area” in 1993 by Security Council Resolution 8191
during the Bosnian War and despite the presence of troops of the United Nations Protection Force (UNPROFOR), a peacekeeping mission of the United Nations (UN), the enclave of Srebrenica could not be protected against an attack by the Serb forces in 1995 and its Bosnian Muslim inhabitants could not be protected from genocide. In this thesis the responsibility of the UN for not preventing the Bosnian genocide from taking place is examined. It is found that the UN was aware of the threat of genocide and the method of “ethnic cleansing”. The Dutch Battallion (Dutchbat) of UNPROFOR was in charge of protecting the safe area of Srebrenica in July 1995, but failed to do so. The UN was under an obligation to prevent genocide from taking place and UNPROFOR acted as an organ of the UN and therefore its actions were attributable to the UN. The UN could have done more to prevent the genocide from occurring, as it was delaying the use of force and refusing to allow the use of air support. Even though the UN is partially responsible for the genocide in Srebrenica as it breached its obligation to prevent genocide under article 1 of the Genocide Convention,2 the UN enjoys
absolute immunity from every form of legal process, as described in article 105 (1) UN Charter3 and article 2 (2) of the Immunities Convention.4
Table of Contents
1 SC Resolution 819 (1993), par. 1.
2 Art. 1, Convention on the Prevention and Punishment of the Crime of Genocide (Genocide Convention) (1948).
3 Art. 105 (1), Charter of the United Nations (UN Charter) (1945).
4 Art. 2 (2), Convention on the Privileges and Immunities of the United Nations (Immunities Convention) (1946).
Introduction: The International Responsibility of the UN for the Genocide Which Took
Place in Srebrenica During the Bosnian War………4
1. The Events Before, During and After the Siege of Srebrenica and the Role of the UN in these Events ………...8
1.1 The Events in Srebrenica Before the Siege………...8
1.2 The Siege of Srebrenica ………...………...……….12
1.3 The Events After the Fall of Srebrenica……….15
2. The Legal Responsibility of the UN for the Genocide in Srebrenica……….22
2.1 Attributing Legal Responsibility for Genocide to the UN……….22
2.1.1 The cases of Nuhanovic v. the Netherlands and Mustafic v. the Netherlands………24
Conclusion and Discussion……….31
Bibliography………35
The International Responsibility of the UN for the Genocide Which Took Place in Srebrenica during the Bosnian War
“The sad truth is that most evil is done by people who never make up their minds to be good or evil.”5 On the 16th of April 1993, during the Bosnian War, the Security Council of the
United Nations (UN), declared Srebrenica and its surroundings “a safe area which should be free from any armed attack or any other hostile act”.67 What followed was one of the worst
massacres in Europe after the Second World War, in which approximately 8000 Bosnian Muslim men and boys were killed in Srebrenica.8 A massacre which has officially been
recognized as genocide by the International Court of Justice (ICJ).9
Although the Security Council of the UN extended the mandate of the United Nations Protection Force (UNPROFOR) to enable it to “deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of military or paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina and to occupy some key points on the ground”10 in resolution 836 on the 4th of June 1993, the presence of the Dutch military
battalion of UNPROFOR, which was based near Srebrenica, did not prevent this tragedy from happening.
Directly after the fall of Srebrenica, on the 12th of July 1995, the UN condemned the
offensive by the Bosnian Serb forces against the safe area of Srebrenica in resolution 1004. In this resolution, the UN demanded that the Bosnian Serb forces would cease their offensive and would withdraw from the safe area of Srebrenica immediately.11 This resolution of the
Security Council was ignored by the Bosnian Serb forces. Instead, after taking over the enclave of Srebrenica, the Bosnian Serb forces quickly depopulated the area by separating the Bosnian Muslim men from the women and children and transporting them to different
locations in the area. Thousands of male Bosnian Muslims were executed within a few days.12
And so, a genocide took place in the “safe area” of Srebrenica in July 1995.
5 Hannah Arendt, The Life of the Mind, “Thinking”, Mariner Books 1978. 6 SC Resolution 819 (1993), par. 1.
7 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), p. 499.
8 C. Ryngaert & N. Schrijver, ‘Lessons Learned from the Srebrenica Massacre: From UN Peacekeeping Reform to Legal Responsibility’, Netherlands International Law Review, 2 (2015), pp. 219 + 220.
9 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ‘Srebrenica Case’ (2007), Judgment, International Court of Justice (ICJ), available at: http://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf, p. 108 § 297. 10 SC Resolution 836 (1993), par. 5.
11 SC Resolution 1004 (1995), par. 1.
12 United Nations General Assembly, Report of the Secretary-General pursuant to General Assembly resolution 53/35, ‘The Fall of Srebrenica’, UN Report A/54/549 (1999), par. 346 – 370, par. 467 – 469, hereinafter called: UN Doc A/54/549.
“Genocide” is a crime under international law which has been described as “a denial of the right of existence of entire human groups” in resolution 96 of the General Assembly of the United Nations in 1946.13 Under article 1 of the “Convention on the Prevention and
Punishment of the Crime of Genocide” (Genocide Convention) of 1948, the Contracting Parties to the convention confirm that genocide is a crime under international law “which they undertake to prevent and to punish”.14 According to article 2 of the Genocide Convention
genocide means:
“any of the following acts committed with intent to destroy, in whole or in part, a national ethnical, racial or religious groups, as such: a) killing members of the group; b) causing serious bodily or mental harm to members of the group; c) deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) imposing measures intended to prevent births within the group; e) forcibly transferring children of the group to another group.”15
Article 3 of the Genocide Convention makes the following acts punishable: “a) genocide; b) conspiracy to commit genocide; c) direct and public incitement to commit genocide; d) attempt to commit genocide; e) complicity in genocide”.16 Article 4 of the
Genocide Convention also explicitly mentions that persons committing genocide or any of the other acts mentioned in article 3 of the Genocide Convention will be punished, “whether they are constitutionally responsible rulers, public officials or private individuals.”17
In Srebrenica, approximately 8000 Bosnian Muslim men18 were executed by the
Bosnian Serb forces in July 1995. This was an act committed with the intent to destroy, in whole or in part, an ethnical group by “killing members of the group” as it says in article 2 of the Genocide Convention.
There are indications that the actions and omissions on the part of UNPROFOR, an acting organ of the UN, and of the UN itself contributed to the unfolding of the tragic events in Srebrenica.19 For instance, the UNPROFOR troops failed to fire directly at the Serb forces
when they attacked the enclave.20 As was said before, UNPROFOR had a mandate to “deter
attacks against the safe areas” following from resolution 836 of the Security Council. In addition to this, resolution 836 also authorized UNPROFOR, “acting in self defence, to take
13 UN Resolution 96 (1946).
14 Genocide Convention (1948), art. 1. 15 Genocide Convention (1948), art. 2. 16 Genocide Convention (1948), art. 3. 17 Genocide Convention (1948), art. 4.
18 C. Ryngaert & N. Schrijver, ‘Lessons Learned from the Srebrenica Massacre: From UN Peacekeeping Reform to Legal Responsibility’, Netherlands International Law Review, 2 (2015), pp. 219 + 220. 19 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), pp. 507-512.
the necessary measures, including the use of force, in reply to bombardments against the safe areas”.21 There was however a strong reluctance on the part of UN members to support the use
of military force to deter attacks on the safe areas.22 Along with its members, the UN has an
obligation to prevent genocide from taking place, as is written in article 1 of the Genocide Convention. UNPROFOR was established by the Security Council and was as such an organ of the United Nations. The actions of UNPROFOR could therefore be attributable to the United Nations.23
It is safe to say that the UNPROFOR mission in Srebrenica had failed as a
peacekeeping mission and that Srebrenica could not be protected as a “safe area”. The legal responsibility for the war crimes which took place in Srebrenica can be assigned to multiple parties to the conflict. Many factors, such as miscommunication, misinformation and mistakes on multiple sides had their influence on the atrocities which happened in Srebrenica. The question remains whether anything could have been done to prevent the Bosnian genocide from taking place or to save more people from harm. What could have been done better by whom? What was known beforehand about what the Bosnian Serb forces intended to do? Could the UN have done more to prevent the Bosnian genocide? Furthermore, can the conduct of UNPROFOR, as an organ of the UN, be attributed to the UN as an international organization? In this thesis, the main focus will be on the extent to which the UN, as an international organization, can be held legally responsible for the genocide which took place in Srebrenica during the Bosnian War, in light of the obligation to prevent genocide of article 1 of the Genocide Convention.
To be able to investigate the legal responsibility of the UN for the genocide which took place in Srebrenica during the Bosnian War, the events in Srebrenica in the period just before and during the siege of Srebrenica, its fall and the Bosnian genocide in Srebrenica during the Bosnian War and the UN’s role in these events will be examined. The actions and inactions of UNPROFOR in Srebrenica in relation to the fall of Srebrenica and the Bosnian genocide will be discussed hereby, as well as the events in Srebrenica which can be classified as “genocide”. Secondly, the conditions for legal responsibility of international organizations for wrongful acts will be explored by examining legislation and jurisprudence before
assessing the legal responsibility of the UN for the genocide in Srebrenica. In the conclusion of this thesis, the question of the extent to which the UN is legally responsible for not
21 SC Resolution 836 (1993), par. 9. 22 UN Doc A/54/549, par. 94 + 95.
23 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
preventing the Bosnian genocide in Srebrenica during the Bosnian War will be answered. The lessons that can be learned from Srebrenica for the future will be discussed further.
1. The Events Before, During and After the Siege of Srebrenica and the Role of the
UN in these Events
“After Srebrenica fell to besieging Serbian forces in July 1995, a truly terrible massacre of the Muslim population appears to have taken place. The evidence tendered by the Prosecutor describes scenes of unimaginable savagery: thousands of men executed and buried in mass graves, hundreds of men buried alive,
men and women mutilated and slaughtered, children killed before their mother’s eyes, a grandfather forced to eat the liver of his own grandson. These are truly scenes from hell, written on the darkest pages of human history.”24
Despite the fact that the United Nations had a mandate to deter attacks on Srebrenica and five other safe areas in Bosnia and Herzegovina, up to 20000 people, most of them Bosnian Muslims, were killed in and around the safe areas.25 Despite the peacekeeping
mission of UNPROFOR, a genocide was able to take place in Srebrenica in July 1995. In this chapter the events in Srebrenica during the Bosnian War just before and during the siege of Srebrenica and after the fall of Srebrenica and the role of the UN in these events will be examined closely and discussed.
The Events in Srebrenica Before the Siege
When the Republics of Croatia and Slovenia declared their independence on the 25th of
June 1991, the break-up of the Socialist Federal Republic of Yugoslavia advanced. Following these declarations, fighting broke out between the Slovenian forces and the Serb forces of the Yugoslav People’s Army (JNA) and also in Croatia between Croatian forces and JNA forces as well as Croatian Serb militias.26
On the 15th of February 1992, the then Secretary-General of the UN, Boutros
Boutros-Ghali, in fear of a breakdown of a ceasefire in Yugoslavia, proposed the establishment of a peacekeeping force to implement the Vance Plan, stating that “the danger that a United Nations peace operation will fail because of lack of cooperation of the parties is less grievous than the danger that delay in its dispatch will lead to a breakdown of the ceasefire”.27 And so,
resolution 743 (1992) was approved to establish the United Nations Protection Force (UNPROFOR) in accordance with the peace-keeping plan of the United Nations, to “create the conditions of peace and security”.2829
The Bosnian war officially began on the 6th of April 1992.30 On this day, the
independence of the Republic of Bosnia and Herzegovina was recognized by the European Community and by the United States of America the day after. From that moment on, the fighting began to intensify in a number of areas in Bosnia and Herzegovina. It was a war
24 Press release issued by the International Tribunal for the Former Yugoslavia (CC/PIO/026-E), The Hague, 16 November 1995, cited in UN Doc A/54/549, par. 2.
25 UN Doc A/54/549 , par. 3. 26 Idem, par. 10 – 13. 27 Idem, par. 13.
28 SC Resolution 743 (1992), par. 2 + 5. 29 UN Doc A/54/549, par. 14.
between the JNA (which would later be known as the Army of Yugoslavia or VJ), the Bosnian Serb Army (BSA), the Army of the Republic of Bosnia and Herzegovina (ARBiH) and the Croatian Defence Council (HVO). Later on, the Croatian Army (HV), also became involved in the conflict.
The Bosnian Muslims were called “Bosniacs” and represented 44 % of the population of Bosnia and Herzegovina (which was 4.4 million people). The Croats constituted 17 % of the population. The JNA and the BSA forces were dominated by the Serbs, who constituted 31 % of the population of Bosnia and Herzegovina. On the 10th of May 1992 the JNA
withdrew from Bosnia and Herzegovina, but kept supporting the BSA forces. The conflict involved a lot of local fighting and terror. A central objective of the conflict was the use of military means to terrorize civilians, with the goal of forcing them to flee their homes. This process came to be known as “ethnic cleansing”.31
Already from the beginning of the war, the Serbs secured their control over the enclaves by restricting the flow of humanitarian aid to Srebrenica and other Bosniac
communities. This caused conditions of extreme privation in the enclaves. In a report of the then Secretary-General of 12 May 1992, Boutros Boutros-Ghali, he said that what was happening was an effort by the Serbs of Bosnia and Herzegovina to “create ‘ethnically pure’ regions”, using techniques as the “seizure of territory by military force and the intimidation of non-Serb population.” The fighting and the intimidation in Bosnia and Herzegovina brought about a huge displacement of civilians. The population of Bosnia and Herzegovina was so mixed that there was no possible method of creating territorially distinct States based on ethnicity without enforced population transfer or “ethnic cleansing”.32
Srebrenica lay in a mountain valley in Eastern Bosnia with a population of 37000 residents in 1991. 73 % of the population were Bosniacs and 25 % were Serbs. At the beginning of the war Srebrenica was briefly under Serb control, but by May 1992 the Bosniacs begun to challenge Serb control and took over the town.
While the situation in Bosnia and Herzegovina deteriorated, a proposal for the establishment of “safe areas” for the Bosniac population emerged from the search for a compromise within the Security Council of the UN. The safe areas would need international protection and the mandate for the UNPROFOR forces needed to be expanded, but there was disagreement between UN Member States about whether or not the UNPROFOR mandate
31 Idem, par. 15 – 19. 32 Idem, par. 21 – 30.
should be expanded as to bring the UNPROFOR forces into direct military confrontation with the Bosnian Serbs. In order for UNPROFOR to be able to protect the safe areas, new troop contributions were required. The Force Commander of UNPROFOR disagreed with the concept of establishing safe areas, as he found that protecting the safe areas would be a job for a “combat-capable, peace-enforcement operation”.3334
Nonetheless, with resolution 819 in 1993, the safe area of Srebrenica was created. The resolution called for “the immediate cessation of armed attacks by Bosnian Serb paramilitary units against Srebrenica and their immediate withdrawal from the areas surrounding
Srebrenica” and requested the Secretary-General “to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings”.35 The resolution provided no
military obligations for UNPROFOR to establish or protect the safe area of Srebrenica.36
UNPROFOR, confronted with the reality that Srebrenica was under threat, convinced the Bosniac commanders, General Halilovic of the Army of the Republic of Bosnia and Herzegovina (ARBiH) and Serb General Mladic of the Army of Republika Srpska (BSA) to sign an agreement to the demilitarization of Srebrenica on the 18th of April 1993.37
A mission of the Security Council visited Srebrenica on the 25th of April 1993 the
assess the situation. In their report, the Council members blamed the Serbs for committing “a slow-motion process of genocide.” The mission stated that the actual situation in Srebrenica did not correspond to “either the spirit or the intent of the resolution” referring to resolution 819 (1993) and said that if the Serbs would ignore the integrity of the safe areas, this would lead to “eventual consideration” of “military strike enforcement measures”.38 Finally, on the
4th of June 1993, resolution 836 was established, extending the mandate of UNPROFOR and
enabling it to “deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of military or paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina and to occupy some key points on the ground”39 as well
as authorizing UNPROFOR
“acting in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any
33 UN Doc A/54/549, par. 41 – 44. 34 Idem, par. 45 – 51.
35 SC Resolution 819 (1993), par. 1 + 2 + 4 + 8 36 UN Doc A/54/549, par. 52 – 58.
37 Idem, par. 59 – 62. 38 Idem, par. 63 – 65.
deliberate obstruction in or around those areas to the freedom of movement of the Force or of protected humanitarian convoys”40
Furthermore, the resolution also decided that Member States
“may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and the Force, all necessary measures, through the use of air power, in and around the safe areas in Bosnia and Herzegovina, to support the Force in the performance of its mandate set out in paragraphs 5 and 9
above.”41
The fact that UNPROFOR was allowed to use force in reply to bombardments against the safe areas meant that they were not only allowed to use force when fired at directly, but also in reply to bombardments against the safe areas, if in self-defence. Furthermore, the use of air power in and around the safe areas to support UNPROFOR in the performance of its mandate was allowed, according to paragraph 10 of this resolution.
In 1994 a Dutch battalion was sent to Srebrenica to take over the duties of the Canadian UNPROFOR troops there. The Dutch battalion came to be known as “Dutchbat” and was part of the UNPROFOR peacekeeping mission. In 1995 Dutchbat II was replaced by Dutchbat III under Commander Thom Karremans. Dutchbat had to answer to a UN Command in Sector North-East in Tuzla, which in turn had to answer to UNPROFOR in Sarajevo, under Commanders Cees Nicolai, Rupert Smith and Hervé Gobilliard, who in turn had to answer to UNPF in Zagreb under General Bernard Janvier, who had to answer to the Special
Representative of the Secretary-General of the UN, Yasushi Akashi, who was the head of the mission and would inform and consult the Secretary-General of the UN, then Boutros
Boutros-Ghali. By July 1995 there were, however, only 429 lightly armed Dutch soldiers in the enclave with almost no fuel or munition.4243
The military situation in and around Srebrenica remained relatively calm until 1995. The Serbs were armed with tanks, tracked armoured vehicles, artillery and mortars. They were well supplied and had a good system of command, control and communications, as well as more basic intelligence and information and more knowledge of psychological operations. The Bosniacs had no heavy weapons and only some light mortars. They were poorly trained
40 SC Resolution 836 (1993), par. 9. 41 SC Resolution 836 (1993), par. 10.
42 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 26 + 27 + 43 + 44.
43 NIOD, Instituut voor Oorlogs-, Holocaust- en Genocidestudies, De val van Srebrenica: Luchtsteun en
and conducted few operations or exercises, because of the earlier demilitarization. Their discipline was weak and their command divided.44
From mid-February onward, the Serbs (BSA) continued to progressively limit the flow of humanitarian aid into the enclave, which also constrained the provision of supplies to Dutchbat. The following months the humanitarian situation in Srebrenica worsened. An international humanitarian worker heard rumours about the Serbs planning to “shrink the pocket”. On the 4th of July he saw heavy weapons and tanks on the road to Bratunac, close to
Srebrenica. At that point he contacted his colleague in Srebrenica to warn him. The warning was passed on to Dutchbat.45
The Siege of Srebrenica
In the early morning of the 6th of July 1995 the Bosnian Serb Army (BSA) attacked
Srebrenica. The acting Commander of the Bosniac forces in Srebrenica asked the Dutchbat Commander to give the Bosniacs back the weapons which they had surrendered after the demilitarization agreements in 1993, but his request was refused by the Dutchbat
Commander, in fear of escalating the situation. This decision was supported by the superiors of the Dutchbat Commander because it was “UNPROFOR’s responsibility to defend the enclave”.46 When the Special Representative of the Secretary-General of the UN heard about
the request for weapons from the Bosniacs, he reported to the UN Secretariat that it would be impossible for UNPROFOR to defend the safe area of Srebrenica and that this issue might need to be “resolved in the near future”.47 The same day, the Dutchbat Commander requested
the deployment of close air support, but this was refused by the UNPROFOR Commander’s Chief of Staff, as he did not believe that the restrictive criteria on the use of air power had been met. UNPROFOR’s Chief of Staff informed the Dutchbat Commander that the
UNPROFOR directive 2/95 of the 29th of May of that year, stating that “the execution of the
mandate is secondary to the security of UN personnel”, was still in effect and that violence could only be used as a last resort.48 There had been consistent firing from the BSA forces,
44 UN Doc A/54/549, par. 226 – 230. 45 Idem, par. 231 – 238.
46 Idem, par. 240. 47 Idem, par. 246.
48 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 29 + 30.
also at UNPROFOR personnel, but UNPROFOR did not fire back. The Bosniacs however exchanged some small arms fire with the BSA. 49
On the 7th of July the Dutchbat Commander asked for an “assistance by all means:
ground and air”, but this information was never conveyed to the leadership of UNPF. He, however, also reported to his superiors at the UN that he did not think the BSA would be able to conquer the enclave in a short period of time.5051
On the 8th of July, the Serb forces advanced into the safe area of Srebrenica. They
continued firing at Srebrenica and at the ARBiH forces. Another request was made by the Dutchbat Commander to the UNPROFOR Chief of Staff for close air support. The Chief of Staff refused, but suggested the withdrawing of UNPROFOR personnel from the posts. The UNPROFOR troops were ordered not to return fire by the Dutchbat Commander.52 At the end
of the day, a report was sent to the UNPF Headquarters in Zagreb stating that there were reports that the BSA’s goal was to limit the size of the enclave and that the situation in Srebrenica was very tense.53 In a meeting, the Secretary-General of the UN was informed of
the worsening humanitarian situation in Bosnia. The general of the Bosniacs asked the Dutchbat Commander to request air support.5455
On the 9th of July, the Special Representative of the Secretary-General of the UN was
informed that no request for air support had been received in the UNPF Headquarters in Zagreb.56 It was concluded by UN military observers in Sector North-East however, that the
civilian population, the ARBiH and Duthbat were left “at the direct mercy of the BSA” in an assessment of the situation in Srebrenica. The Dutchbat observation posts and personnel had been directly targeted and the Dutchbat Commander had refused to release the ARBiH weapons, when asked to, respecting the former demilitarization agreements. The Dutchbat soldiers did not have the capacity to control the situation or to stop the Serbs from advancing into Srebrenica. The UN military observers stated that the aims of the Serbs could be
widening, as they had experienced almost no resistance from UNPROFOR.57 The
UNPROFOR Commander in Sarajevo forwarded a request for close air support to the UNPF
49 UN Doc A/54/549, par. 239 – 249.
50 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 30 + 31.
51 UN Doc A/54/549, par. 239 – 249. 52 Idem, par. 250 – 261.
53 Idem, par. 257.
54 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 35 + 36.
55 UN Doc A/54/549, par. 261. 56 Idem, par. 262.
Force Commander in Zagreb. Both the UNPROFOR Commander’s Chief of Staff and the UNPF Force Commander communicated to Serbian Commander Tolimir that they demanded that the BSA would withdraw to the boundaries of the enclave and would release all Dutchbat personnel and equipment, and that if they would not do this within two hours, UNPROFOR would have to respond by all available means. 5859
In the early morning of the 10th of July, Dutchbat soldiers established a blocking
position in an attempt to prevent the Bosnian Serbs from reaching the town of Srebrenica. A request for air support was made the day before, which did reach the UNPF headquarters, and the UNPF Force Commander stated that air support would be available, should the BSA forces attack the blocking position and that in that event, he expected Dutchbat to fire upon the Serbs. The soldiers were instructed to not fire directly at the BSA at first, only if the BSA persisted with attacking. The Serbs did indeed fire at the Dutchbat soldiers although the Dutchbat soldiers only fired warning shots back and a request was made for air support, but was not approved. Later on during the day, the Dutchbat Commander again requested close air support, which was approved. The aircrafts were on standby, ready to be called upon. By the end of the day, Srebrenica residents were fleeing northwards to the town centre around the Dutchbat positions. The UNPF Force Commander told the Serbs that the UN would not leave the enclave and he demanded that the BSA would stop the attack and withdraw to the original boundaries of the safe area. Otherwise, the NATO would conduct an air strike against the BSA positions around Srebrenica. Meanwhile, the Security Council of the UN in New York received conflicting reports about the Serbs having ceased and having continued to shell the enclave of Srebrenica.60
In the morning of the 11th of July, Dutchbat personnel was expecting air strikes from
the NATO, but no air strikes were launched. The Chief of Operations in Sector North-East responded that there were no records of any air strikes having been requested. That morning, Dutchbat requested air support twice. One of these requests reached the UNPF headquarters. The planes were again on standby. During the afternoon, however, Serb forces began firing again and Serb forces entered the town of Srebrenica with little resistance from UNPROFOR and ARBiH. Dutchbat soldiers did not fire directly at the advancing Serb forces. Srebrenica had fallen and residents began to flee northwards. At least three more requests for air support were made and turned down. Finally, 18 NATO aircrafts reached Srebrenica which dropped two bombs on Serb vehicles. The Serbs threatened to bombard the Dutchbat compound in
58 Idem, par. 271. 59 Idem, par. 273 – 275. 60 Idem, par. 273 – 296.
Potocari where thousands of Bosniacs had fled to and kill the Dutchbat soldiers if NATO would continue with the attacks. The air support action was halted on the orders of the UN Commanders and the Dutch Minister of Defence. Around 25000 inhabitants had fled to the Dutchbat headquarters in Potocari of which around 4000 to 5000 had entered the compound, while around 15000 Bosniac men tried to go to Tuzla on foot, through Serb lines. The UNPROFOR Commander, Hervé Gobilliard, instructed Dutchbat to try to negotiate a
ceasefire with the BSA and “to take all reasonable measures to protect refugees and civilians in their care” and to “continue with all possible means to defend their forces and installation from attack”. This would include “the use of close air support if necessary.” Dutchbat was, however, no longer able to carry out these instructions. The Dutchbat Commander had two meetings with General Mladic that evening in which Mladic demanded that the ARBiH forces handed over their weapons to the BSA, for he would bomb the Dutchbat compound in
Potocari otherwise. Afterwards, the Dutchbat Commander sent a report to Zagreb, Sarajevo, Tuzla and the Hague saying “I am responsible for these people yet I am not able to: defend these people; defend my own battalion;”6162
The Events After the Fall of Srebrenica
The next day, on the 12th of July, the report of the Dutchbat Commander was
transmitted to the UN Headquarters in New York by the Special Representative of the Secretary-General of the UN. Meanwhile, the Serb attacks on the enclave continued. Mladic insisted that the Bosniacs would disarm. If they would do this, Mladic would allow the civilians to stay in Srebrenica or to be evacuated to other areas. He again threatened to bomb the Dutchbat compound, if air power would be used. There were only around 350 Dutchbat soldiers in Potocari at this point.63 The UN and the Dutch government had come to an
agreement by this point that Dutchbat would supervise the evacuation.64 The Dutch Minister
of Defence Voorhoeve instructed Dutchbat to not assist with the separation of men and women or “ethnic cleansing” in any way.65 By midday, the Dutchbat Commander and Mladic
and Bosniac civilian representatives proceeded in drawing up an evacuation plan. The men were separated from the women, children and elderly. Mostly the women, children and eldery
61 UN Doc A/54/549, par. 297 – 317.
62 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, p. 62.
63 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 56 + 57.
64 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, p. 63.
were allowed to board the buses. The Dutchbat Deputy Commander later said that he initially protested to the BSA about the separation of the men, but allowed it after being reassured that the men would not be harmed and only questioned. The men who were on the buses were later separated and shot in an elementary school. By the end of the 12th of July, around 5000
women, children and elderly were deported by the BSA. Dutchbat personnel was not able to put a soldier on each of the buses due to the amount of buses and the speed at which they arrived.66 Some Dutchbat soldiers attempted to follow the vehicles, but were taken hostage by
the Serbs in Bratunac, as the buses with Bosniac men drove on.67 The same day, resolution
1004 (1995) was adopted which demanded that “the Bosnian Serb forces cease their offensive and withdraw from the safe area of Srebrenica immediately.” Several member states
advocated the re-establishment of the safe area by force during the debate on the resolution. The UNPF Force Commander informed the Special Representative to the Secretary-General however that the retaking of Srebrenica by force would not be feasible with the resources currently available to UNPROFOR. The Special Representative was also concerned that it would “blur the distinction between peacekeeping and peace-enforcement.”6869
During the night of 12-13 July sporadic killings by the BSA began to take place. Bosniac men were transported by the BSA in buses to Bratunac, where they were packed into a hangar. The Dutchbat personnel was not allowed to accompany them. The BSA dragged men out of the hangar and started to beat them with blunt instruments. Approximately 50 men were killed during this incident. In another incident, where Dutchbat personnel was able to accompany a convoy of 7 vehicles carrying 54 wounded and 10 locally recruited MSF employees, the BSA dragged 20 wounded men of military age off the vehicles and forced them to walk to Kladanj. Many had to crawl, as they could not walk, and some could not even crawl. In another incident that night 9 men were taken near a stream by the BSA and shot dead. Many other executions were carried out during the night, including the ambush of the 15000 Bosniac men who were fleeing north and west of Srebrenica, in which hundreds of Bosniac men were killed.70
The next morning, on the 13th of July, the Serbs proceeded in separating the men from
the women and children. Dutchbat was not able to follow the groups of men who were being deported to Bratunac. Of the thousands of men who were still fleeing from the Serbs, large
66 UN Doc A/54/549, par. 318 – 328.
67 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, p. 67.
68 SC Resolution 1004 (1995), par. 1. 69 UN Doc A/54/549, par. 318 – 339. 70 UN Doc A/54/549, par. 329 – 345.
groups surrendered to the Serbs and were taken to Bratunac as well. The men still in the Dutchbat compound became suspicious after the killings during the night and pleaded to the Dutchbat Deputy Commander not to be handed over to the Serbs, but the Dutchbat
Commander ordered them to leave the compound, even though the Commander was aware of the fact that the bodies of 9 men had been found next to a nearby stream. UNPROFOR and Serb soldiers worked together to bring the last groups of Bosniacs to the Serb buses. The UN military observers and Dutchbat were aware that Bosniac men were being detained in
Bratunac, but did not know how many or the precise locations. Around 4000 to 5000 Bosniac men were being held at various locations at that time. Refugees from Srebrenica told UN military observers that they had seen “men being separated from others, severely beaten, stoned and in some cases stabbed.” Men who had been transported to Kladanj were missing and also groups of women were missing. Mladic had told UN military observers himself that there were several hundred bodies of dead Bosniac soldiers in the enclave, but that it was “not his intention to kill any more soldiers” and that they only had to “surrender and hand over their weapons.” The UN military observers and Dutchbat were however, not allowed by the BSA to see the bodies. This report was sent to the UN Headquarters in New York.
The Chargé d’affaires of the Permanent Mission of Bosnia and Herzegovina wrote a letter to the Secretary-General on the 13th of July, stating that “since the United Nations has
failed to defend the population of Srebrenica, on United Nations demilitarized territory, it is not absolved of its obligations to provide for them now, once in government-held territory, after having exposed them to life-threatening danger resulting from the absence of timely United Nations action.”
A number of Dutchbat soldiers witnessed independently from each other executions or suspicious events taking place on the 13th of July. Only a few of these accounts were formally
reported to the UNPROFOR chain of command on the 13th of July or on the next day. By this
time, Srebrenica had been made an “ethnically pure” region and the only people remaining there were Dutchbat and their employees. Meanwhile in Tuzla, the UN Command in Sector North-East was worried. They counted that around 4000 Bosniac refugees from Srebrenica were missing. Sector North-East reported this difference to the UNPF in Zagreb, but by the time this information reached Special Representative Akashi it would already be too late.7172
On the 14th of July, the thousands of Bosniac males still being held in Bratunac, were
transported to different locations in the area and were all executed over the next two to three
71 UN Doc A/54/549, par. 346 – 360.
72 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 74 – 77.
days. Only a few individuals were able to survive by hiding under or among the dead bodies. Some of the killed men, were humiliated before being beaten or shot to death. Sometimes they were made to dig their own graves and shot while standing in them or in front of them. Some Dutchbat soldiers saw hundreds of corpses on the roadside while travelling to Bratunac, but this information was not shared with the UNPROFOR chain of command.73
On the 15th of July agreements had been made with the Bosnian Serbs that Dutchbat
troops would be free to leave on the 21st of July or shortly after. The UN received reports from
the Special Representative and the UN military observers of missing Bosniac men, disappeared buses and possible massacres having taken place.74
Of the 12000 to 15000 men who fled Srebrenica, approximately 3000 had been killed by the BSA while 4000 to 7500 of them were missing after surrendering to the BSA. An unknown number of these men had committed suicide. Only 4500 to 6000 of the men who fled Srebrenica, had made it into ARBiH-controlled territory after a six-day march through the forest. Stories of the atrocities committed in Srebrenica about murder, torture and rape, began to emerge from refugees and survivors.75
From the 11th of October to the 15th of December 1995, UNPROFOR monitored the
ceasefire and was able to operate as a peacekeeping force without significant violations of the ceasefire. On the 14th of December 1995 the General Framework Agreement for Peace in
Bosnia and Herzegovina was signed in Paris.76
The events in Srebrenica during the Bosnian War are shocking. The remains of close to 2500 men and boys have been found and thousands of men are still missing. Most of these men were not killed in combat, but executed with their hands bound and/or blindfolded or shot in the back or in the back of the head. These murdered men were unarmed. It’s tragic that Srebrenica was believed to be a “safe area” by the inhabitants of the enclave and that they believed that the UN, the UNPROFOR peacekeepers and the NATO air power would keep them safe. The Bosnian Serb forces, however, ignored the resolutions of the Security Council and the UNPROFOR troops. They overran the safe area of Srebrenica, when they realised that air power would not be used to stop them from doing so. While negotiations were going on, the Serbs quickly depopulated the area and executed thousands of Bosniac men.
73 UN Doc A/54/549, par. 361 – 382. 74 Idem, par. 375 – 382.
75 Idem, par. 383 – 393. 76 Idem, par. 465 + 466.
The Dutchbat Commander believed that his battalion would not be able to defend Srebrenica themselves, without air support. The Dutchbat were only 150 lightly armed fighting men, while there were 2000 heavily armed Serbs. On multiple occasions a request for air support was made, which was sometimes refused and sometimes not even received. This was because of communication and command-and-control problems in the UN chain of command. The Dutchbat Commander was also told that the safety of his personnel was more important than the execution of the mandate.
The issue of the close air support which was often refused and which came too late and was stopped too soon remains often debated and questioned. The Serbs were attacking Srebrenica and firing directly at the UN observation posts already days before the fall of the enclave. The use of close air support was warranted. The Special Representative and the UNPF Force Commander as well as members of the UN were very reluctant to use air power against the Serbs. They were afraid of being perceived as entering a war against the Serbs, of endangering the safety of the UNPROFOR troops, of reprisals from the Serbs against the peacekeepers and of disturbing the peacekeeping mission of UNPROFOR. A hostage crisis earlier in 1995 in which UNPROFOR soldiers were taken hostage by the Serbs was one of the reasons for these concerns. The process for requesting air support was therefore complicated and time-consuming and had to meet certain criteria as well.77 A request demanded approval
from the whole UN chain of command as well as from the NATO.78 Air support would also be
subject to the “Rules of Engagement”, which meant that NATO planes in a close air support mission were only allowed to hit certain targets which formed a direct danger to the
UNPROFOR troops on the ground. Although the UN did use the threat of air power a couple of times against the Serbs, it was meant to deter attacks and to intimidate the Serbs without having to actually use air power. The threat of air power, however, was the only effective means the UN had at its disposal in this situation in fact. As the safe area of Srebrenica was being attacked air power should have been used as a last resort, instead of accepting the shelling of Srebrenica.7980
Furthermore, UNPROFOR was unwilling to use force in the context of their peacekeeping mission. They saw their mission as a neutral peacekeeping mission with mainly a
77 NIOD, Instituut voor Oorlogs-, Holocaust- en Genocidestudies, De val van Srebrenica: Luchtsteun en
voorkennis in nieuw perspectief, Amstrdam: Boom Uitgevers Amsterdam 2016, pp. 47 – 51.
78 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, pp. 43 + 44.
79 UN Doc A/54/549, par. 467 - 483.
80 NIOD, Instituut voor Oorlogs-, Holocaust- en Genocidestudies, De val van Srebrenica: Luchtsteun en
humanitarian aim. They refrained from using force, in fear of choosing a side in the Bosnian war, of humanitarian aid being blocked by the Serbs and of being taken hostage or other reprisals. They saw themselves as a peacekeeping mission and not as a peace-enforcement mission. Dutchbat was in fact not sent to Srebrenica to fight the Serbs, but to keep the peace.
Given the fact that UNPROFOR was unwilling to use force themselves to deter attacks on the enclave, it seems to have been an unwise decision of UNPROFOR to refuse to give the Bosniacs their own weapons back. The Bosniacs were under attack and wanted to defend themselves, but UNPROFOR said it was “UNPROFOR’s responsibility to defend the
enclave”, although UNPROFOR was unwilling to fire directly at the attacking Serbs. Without their own weapons their safety depended on the defenders of the safe areas, the UNPROFOR troops. Giving the Bosniacs their own weapons back to defend themselves could have made a difference in the situation and could have at least given the inhabitants more time to flee and a better chance to survive.8182
There was also a failure on the subject of the sharing of intelligence. The Bosnian Serbs wanted to establish a “Greater Serbia” and used a method called “ethnic cleansing” to gain territory for themselves. The death or removal of the civilian inhabitants of these territories was the purpose of the Serb attacks. Terror, mass killings, rapes and torture were employed to depopulate territories. These war aims of the Serbs were not fully understood or were underestimated by the UN during the attack on Srebrenica. Conflicting reports were also sent to the Security Council about the situation in Srebrenica being under control, the Serbs not attacking, while they were in fact attacking, and by not mentioning requests for air support. The Dutchbat personnel also did not seem to report sufficiently the indications after the fall of Srebrenica that mass executions were taking place. If these indications would have been reported immediately to the UN, the member states and the UN possibly could have responded more quickly and more firmly.8384
It is safe to say there were problems in communication between the superiors at different levels in the UN chain of command and that intelligence wasn’t shared properly with the UN chain of command throughout the conflict. The previous demilitarization of the safe area of Srebrenica had also not made the area more secure, but only an easier target for the Serbs. The providing of humanitarian aid, an arms embargo and the deployment of a
81 UN Doc A/54/549, par. 475 - 479 + 488.
82 NIOD, Instituut voor Oorlogs-, Holocaust- en Genocidestudies, De val van Srebrenica: Luchtsteun en
voorkennis in nieuw perspectief, Amstrdam: Boom Uitgevers Amsterdam 2016, pp. 135 – 138.
83 UN Doc A/54/549, par. 467 - 474. 84 Idem, par. 488 – 497.
peacekeeping force, lightly armed and highly visible, were not a sufficient response of the international community and the UN to “ethnic cleansing” and an impending genocide. In the words of the report of the Secretary-General of 1999: “We tried to keep the peace and apply the rules of peacekeeping when there was no peace to keep”. The Security Council expected the authority of the UN to be respected on the ground, but the Serbs used the UN more as an instrument for their aims. 85 There was also a reluctance on the side of the UN to use force and
air power, which threatened the safe area and was convenient for the Serbs In the next
chapter, the conditions for legal responsibility of international organizations for wrongful acts will be explored before examining the legal responsibility of the UN for not preventing the genocide in Srebrenica. 86
2. The Legal Responsibility of the UN for the Genocide in Srebrenica Although Srebrenica was declared a “safe area” by the UN Security Council Resolution 819,87 this did not prevent a genocide from taking place during the Bosnian War. After the
war, many cases about the Bosnian genocide and the events in Srebrenica came before national and international courts.
The Netherlands Battalion in Srebrenica (Dutchbat) served under the United Nations Protection Force (UNPROFOR) and was in charge of the protection of the safe area of Srebrenica during the Bosnian War.88 Dutchbat, as part of UNPROFOR, was in essence a
subsidiary organ of the United Nations. UNPROFOR was established by the Security Council
85 Idem, par. 488 – 497. 86 Idem, par. 467 – 506.
of the UN and acted under a binding chapter VII Security Council resolution. Therefore, UNPROFOR was an organ of the UN and therefore its actions were attributable to the UN.
Regarding UNPROFOR, the UN kept ultimate authority and control over the force. This also derives from resolution 743 (1992) of the Security Council89, in which it was stated that
the Security Council decided “to establish, under its authority, a United Nations Protection Force.” The force commanders of UNPROFOR acted under direction of the
general’s special representative for the former Yugoslavia who had to answer to the secretary-general who was accountable to the Security Council. 9091
The actions or inactions of the UNPROFOR troops, as organs of the United Nations, have contributed to the events that took place in Srebrenica. The question remains for which actions of Dutchbat during the events in July 1995 in Srebrenica the UN can be held
responsible. In this chapter, the legal responsibility of the UN for the genocide in Srebrenica will be explored.
Attributing Legal Responsibility for Genocide to the UN
Under article 1 of the Genocide Convention all members to the Genocide Convention have an obligation to prevent genocide from taking place. It is an obligation erga omnes to prevent genocide as a peremptory norm of international law. The UN bears equal
responsibility with its members to combat and prevent acts of genocide, as this obligation is of a jus cogens nature.92 According to the International Court of Justice in the Srebrenica case
“the obligation to prevent genocide places a State under a duty to act which is not dependent on the certainty that the action to be taken will succeed in preventing the commission of acts of genocide, or even on the likelihood of that outcome.”93 It is safe to assume that the same
could be said for an international organization with the same obligation to prevent genocide. In addition to this, it could be seen as customary international law. The UN is an
88 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), pp. 509 + 510 + 513.
89 SC Resolution 743 (1992), par. 2.
90 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), pp. 514 + 515.
91 Department of Peacekeeping Operations (DPKO) United Nations Protection Force: Background 42
http://www.un.org/Depts/dpko/co_mission/unprof_b.htm (13-03-2008), cited in H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’, Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), p. 515.
92 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), p. 512.
93 The Application of the Convention on the Prevention and Punishment of the Crime of Genocide (Bosnia and Herzegovina v. Serbia and Montenegro), ‘Srebrenica Case’ (2007), Judgment, International Court of Justice (ICJ), available at: http://www.icj-cij.org/files/case-related/91/091-20070226-JUD-01-00-EN.pdf, p. 233 § 461.
intergovernmental organisation representing its member states. The UN is part of the international community and has as such a responsibility to protect populations, when their own states fail to protect them, as the UN has stated in an Outcome Document of the 2005 United Nations World Summit.94 "Preventing genocide is a collective obligation” as Ban-Ki
Moon has said at a commemoration of the Rwanda genocide.95 If there is a responsibility on
behalf of the UN to protect populations from genocide on the basis of the Genocide
Convention and customary international law, then there is an obligation for organs of the UN to intervene or take measures against those who act contrary to this obligation to prevent genocide.96
Under articles 3 and 4 of the “Draft articles on the responsibility of international organizations” (DARIO) (2011) it is said that an organization will have international
responsibility when an act or omission is attributable to that organization and it constitutes a breach of an international obligation of that organization.97
Under article 6 DARIO (2011) it is stated that the conduct of an organ of an
international organization in the performance of functions of that organ will be considered as an act of that international organization.98
Article 7 DARIO (2011), called “Conduct of organs of a State or organs or agents of an international organization placed at the disposal of another international organization” states that
“The conduct of an organ of a State or an organ or agent of an international organization that is placed at the disposal of another international organization shall be considered under international law an act of the
latter organization if the organization exercises effective control over that conduct.”99
A breach of an international obligation by an international organization will exist when “an act of that international organization is not in conformity with what is required of it
94 General Assembly, ‘Resolution adopted by the General Assembly on 16 September 2005’, Outcome Document United Nations World Summit, Doc 60/1. 2005 World Summit Outcome (2005); United Nations, Office of the Special Adviser on the Prevention of Genocide, ‘Prevention of Genocide’,
http://www.un.org/ar/preventgenocide/adviser/pdf/osapg_booklet_eng.pdf, visited at 07-01-2018
95 Secretary-General Ban Ki-moon on the 18th commemoration of the Rwanda genocide, 2012, as cited in: United Nations, ‘Preventing Genocide’,
http://www.un.org/en/preventgenocide/rwanda/pdf/bgpreventgenocide.pdf, visited at 07-01-2018
96 A. Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’,
Journal of International Criminal Justice, 5 (2011), pp. 1149 - 1150.
97 Art. 3 + 4, International Law Commission, Draft Articles on the Responsibility of International Organizations (DARIO) (2011).
98 Art. 6, DARIO. 99 Art. 7, DARIO.
by that obligation, regardless of the origin or character of the obligation concerned.” (art. 10 (1) DARIO)100
To learn more about the exact meaning of “effective control”, it is helpful to examine the cases of Nuhanovic v. the Netherlands and Mustafic v. the Netherlands.
The Cases of Nuhanovic v. the Netherlands and Mustafic v. the Netherlands
After it became apparent that Srebrenica was overrun by the Serb forces, it was decided to withdraw Dutchbat and evacuate the Dutchbat compound in Potocari, where refugees from Srebrenica were gathered. With help from Dutchbat, the Bosnian Serb Army started
evacuating Bosnian Muslims from the compound on the 12th of July 1995. The next day there
were reports that Bosnian Muslim men were “deported in order to be killed or to suffer serious physical abuse” made known to Dutchbat.101102 The evacuation continued however.
In the cases of Nuhanovic v. the Netherlands and Mustafic v. the Netherlands the
Netherlands were held liable by the Dutch Court of Appeal for the wrongful removal from the compound of Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic. Dutchbat was in charge of protecting the safe area of Srebrenica, as part of UNPROFOR. After the Serbs took over the city of Srebrenica on the 11th of July, the Dutchbat soldiers retreated to the compound
in Potocari together with the Bosniac refugees. It was decided to evacuate the compound and Dutchbat aided the Bosnian Serb Army (BSA) in evacuating the Bosnian Muslim refugees. In the days that followed, Dutchbat became aware of refugees being executed, but nevertheless ordered Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic to leave the compound. They were subsequently deported and killed by the Serbs.103104
The Dutch Court found the conduct of Dutchbat in these specific cases to be attributable to the Netherlands after applying the test of ‘effective control’.105 In principle, Dutchbat was
supposed to only take orders from the commanders in the UN chain of command from sector
100 Art. 10 (1), DARIO
101 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011) and Mustafic v. the
Netherlands, Court of Appeal in The Hague (2011), para. 6.7. The cases Hasan Nuhanovic v. the Netherlands
and Mustafic v. the Netherlands are nearly identical, so I will reference to Hasan Nuhanovic v. the Netherlands in this thesis.
102 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
of International Law, 2 (2012), pp. 522 + 523.
103 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
of International Law, 2 (2012), pp. 522 + 523.
104 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 2.29.
105 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
North-East to the UNPROFOR commander to the UNPF Force Commander, and not from the Dutch government. The evacuation of Dutchbat and the refugees in the compound, however, was decided upon by both the UN and the Dutch government. This is the reason why the Dutch Court concluded that the Dutch government had the power to prevent the events of the Nuhanovic and Mustafic cases from taking place.106107108
However, the Court upheld that control could be exercised by both the state and the United Nations, which would mean that dual attribution was possible. The Dutch Court stated that
“the generally accepted opinion is that if a State places troops at the disposal of the UN for the execution of a peacekeeping mission, the question as to whom a specific conduct of such troops should be attributed depends
on the question which of both parties has ‘effective control’ over the relevant conduct.”109
Therefore, the Court stated that “it cannot be ruled out that the application of this criterion results in the possibility of attribution to more than one party.”110
Furthermore, the Dutch Court stated that
“significance should be given to the question whether that conduct constituted the execution of a specific instruction, issued by the UN or the State, but also to the question whether, if there was no such specific
instruction, the UN or the State had the power to prevent the conduct concerned.”111112
The Court stated that the peacekeeping operation had entered a new transitional phase on 11 July 1995 during the evacuation period, in which not only the UN but also the
government of the Netherlands both had authority over Dutchbat, because Dutchbat was preparing to withdraw from Bosnia Herzegovina. UNPF Commander Janvier on behalf of the
106 T. Dannenbaum, ‘Killings at Srebrenica, effective control, and the power to prevent unlawful conduct’,
International and Comparative Law Quarterly, 3 (2012), pp. 725-728.
107 A. Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’,
Journal of International Criminal Justice, 5 (2011), pp. 1143 – 1145.
108 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.18. 109 Idem, para. 5.8.
110 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.9. 111 Idem, para. 5.9.
112 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
UN and high representatives of the Netherlands took the decision to evacuate Dutchbat and the refugees jointly. 113114115
In order to decide on whether the Netherlands had ‘effective control’, the Dutch Court looked at the concrete “circumstances of the case” and not only at who had theoretical control, but also at who had factual control over the events, assessed in account of the circumstances and context of the case and with respect to the specific conduct.116117118 In
absence of specific instructions, the Court examined who would have the “power to prevent” the specific conduct. 119120
For effective control to be exercised, there needs to be a “power to prevent” but also a legal ability to do so. In other words, effective control is exercised by the entity who can act effectively and within the law to prevent certain acts. The Court of Appeal connected the ability to prevent an act from taking place (which is the effective control) with the legal power (the normative control) to be able to do so. To determine factual control, The Court examined effective control by looking at the concrete circumstances of the case and held that the
removal of Nuhanovic’s family members and Mustafic from the compound was directly connected to decisions and instructions of the government of the Dutch government.121122
If we apply the DARIO articles and the jurisprudence of the cases of Nuhanovic v. the Netherlands and Mustafic v. the Netherlands to the conduct of UNPROFOR, a subsidiary organ of the UN, we can examine which acts or omissions were in breach of the international obligation to prevent genocide. These acts or omissions consist of the acts or omissions of Dutchbat, when under the “effective control” of the UN and the acts or omissions of UNPROFOR or the UN.
113 Idem, pp. 528 – 531.
114 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.9 - 5.19.
115 A. Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’,
Journal of International Criminal Justice, 5 (2011), p. 1150.
116 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.9 - 5.18.
117 Higgins, N., ‘The Responsibility of the Netherlands for the Actions of Dutchbat: An Analysis of Nuhanović and Mustafić’, International Criminal Law Review, 3 (2012), pp. 648-652.
118 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
of International Law, 2 (2012), p. 528.
119 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.9.
120 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
of International Law, 2 (2012), pp. 528 + 529 + 531 + 532.
121 A. Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’,
Journal of International Criminal Justice, 5 (2011), pp. 1149 + 1151.
Under the circumstances of the cases, it is imaginable that the same acts and other acts before and during the fall of Srebrenica could be attributed to the United Nations. After all, according to the Court, dual attribution of the same conduct could be possible. The
“evacuation” of the refugees and especially the separate deportation of men and women from the compound was, however, contrary to the instructions of General Gobilliard to protect the refugees, and so contrary to the instructions of the UN.
To be precise, on the 11th of July 1995, Deputy Commander General Gobilliard of
UNPROFOR ordered Dutchbat to “take all reasonable measures to protect refugees and civilians in your care.”123 The Dutch Court in the Nuhanovic case found that Dutchbat had
acted contrary to Gobilliard’s instructions, because it became clear on the 13th of July 1995
the evacuation of the men would be life-threatening.124 Although the UN and the Dutch
government had decided jointly to evacuate Dutchbat and the refugees from the compound, Minister Voorhoeve from the Dutch government gave Dutchbat the instruction not to cooperate with evacuating the men separately from the women.125 Contrary to Voorhoeve’s
and Gobilliard’s instructions Dutchbat cooperated with the Serbians in evacuating the men separately from the women, while it had already become apparent on the 13th of July that the
evacuation of the men was life-threatening to those men’s lives. As it is not clear whether Dutchbat was certain of cooperating in the execution of those men, while cooperating with the Serbians to evacuate the men separately from the women, it’s hard to say whether Dutchbat was knowingly disobeying Gobilliard’s and Voorhoeve’s instructions.126 During this period,
Dutchbat was also under “effective control” of the Dutch State. The UN and the Dutch government had come to an agreement that Dutchbat would supervise the evacuation of the refugees. Thus, the UN can be held responsible for ordering the evacuation of the refugees, although the UN no longer seemed to have the power to prevent Dutchbat from aiding the Serbs in separating the men from the women, as the Dutch State took over instructing Dutchbat during this period.127128129130
123 Idem, para. 2.16. 124 Idem, para. 6.8. 125 Idem, para. 5.18.
126 T. Dannenbaum, ‘Killings at Srebrenica, effective control, and the power to prevent unlawful conduct’,
International and Comparative Law Quarterly, 3 (2012), pp. 725 – 728.
127 Boutin, B, ‘Responsibility of the Netherlands for the acts of Dutchbat in Nuhanović and Mustafić: the continuous quest for a tangible meaning for ‘effective control’ in the context of peacekeeping’, Leiden Journal
of International Law, 2 (2012), p. 534.
128 A. Nollkaemper, ‘Dual Attribution: Liability of the Netherlands for Conduct of Dutchbat in Srebrenica’,
Journal of International Criminal Justice, 5 (2011), p. 1149.
129 Hasan Nuhanovic v. the Netherlands, Court of Appeal in The Hague (2011), para. 5.11 - 5.18.
130 J. W. Honig & N. Both, Srebrenica: reconstructie van een oorlogsmisdaad, Utrecht: Het Spectrum 1996, p. 63.
Before the fall of Srebrenica, the Security Council was already aware of the fact that there existed a threat of genocide. It was known that the Bosnian Serbs practiced “ethnic cleansing” in eastern Bosnia, that the humanitarian situation in Srebrenica was worsening and that UNPROFOR and the safe areas were under threat. This was also reflected in various Security Council resolutions.131132
When the enclave of Srebrenica was attacked by the Serbs, Dutchbat failed to fire directly at the attacking Serbs. The UNPROFOR troops were, in fact, authorized under resolution 836 (1993) to “deter attacks against the safe areas” and to act “in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas…” UNPROFOR was, however, unwilling to fire directly at the attacking Serbs and instructed Dutchbat soldiers not to do so. Only when Dutchbat formed a blocking position, where they informed that they could fire back at the Serbs in self-defence.
Even during the Serb attack on Srebrenica and while the Serbs were firing at the ARBiH forces themselves, the Dutchbat Commander refused to release the ARBiH weapons, when asked to, respecting the former demilitarization agreements. This decision endangered the ARBiH forces and the Srebrenica inhabitants, as the Serbs kept attacking and the Dutchbat soldiers did not fire back at the Serbs. Dutchbat did not defend the enclave and its inhabitants by not firing back.133 A UN report about the events in Srebrenica later stated that “it is
possible that events would have unfolded differently” had Dutchbat fired directly at the attacking Serbs.134135136
UN members were reluctant to support the use of force to deter attacks on the safe areas. The Security Council of the UN relies on member states to provide the military means to perform its collective security role.137 After resolution 836, the UN Secretariat told the
members sponsoring the resolution that 32000 additional troops were needed in the safe areas, but none of the sponsoring members were willing to contribute additional troops. None of the sponsoring members thought there was a force capable of effectively defending those safe areas.138 The UNPROFOR battalion in Srebrenica initially consisted of 600 members,
131 SC Resolutions 836 (1993), 824 (1993), 819 (1993) and 1004 (1995).
132 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), pp. 513 + 514.
133 UN Doc A/54/549, par. 262 – 276. 134 Idem, par. 470 + 471.
135 H. Strydom, ‘The Srebrenica genocide and the responsibility of states and international organizations’,
Tydskrif vir die Suid-Afrikaanse Reg, 3 (2008), pp. 509 + 510.
136 UN Doc A/54/549, par. 250 – 261. 137 Art. 43 UN Charter.
