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Will Peacekeeper Liabilities Weaken UN Effectiveness?

Friday, 15 November 2013

On 6 September 2013 the Dutch Supreme Court ruled that the state was liable for the deaths of three Bosniaks (Muslim Bosnians) in the 1995 Srebrenica massacre, upholding an Appeal Court decision of 2011.

The men worked for the UN/Dutch peacekeeping force and with many others had taken shelter in the UN compound as Bosnian Serb forces overran Srebrenica on 11 July 1995. Three days later the peacekeepers forced the Bosniaks to leave the compound and face death by the Serbs.

The International Court ruled the killings as genocide and Mladic is on trial for these crimes. The Dutch government accepted “political responsibility” for the failure of the mission, but said responsibility for the massacre itself lies with the Bosnian Serbs.

Victims Sued Dutch Peacekeepers

Relatives of the men launched their human rights case in the Dutch courts in 2003, arguing that the Dutch peacekeepers should have protected the Bosniaks and were therefore liable for their deaths.

The court ruled in 2011 that Dutch forces should not have “handed the three men over to Bosnian Serb forces”, and that “in the chaos of the Serb takeover of Srebrenica, UN commanders no longer had control of the troops on the ground and ‘effective control’ therefore reverted to Dutch authorities in The Hague”.

The Supreme Court decision establishes that countries should hold their “peacekeepers to account” and the ruling means that the victims’ relatives can claim compensation from The Netherlands, although it is uncertain whether relatives of the many others killed at Srebrenica could use it as the basis for group claims for compensation.

A Risky Precedent?

The ruling sets a legal precedent in that it holds to account the conduct of military forces sent to protect civilians: it establishes that “countries involved in UN missions can be found legally responsible for crimes, despite the UN’s far-reaching immunity from prosecution”. However, a Supreme Court judge cautioned that “the narrow focus of the case meant it was unlikely to have far-reaching effects.”

The ruling might impact future UN missions with states reluctant to participate amid fears of being held responsible for the actions of their troops serving as UN peacekeepers. But since the success of actions for compensation is dependent upon the willingness of a state to allow claims to be heard in its national courts, few cases like the Dutch decision are likely.

How is the UN Itself Affected?

In Mothers of Srebrenica v. the Netherlands & the United Nations, the plaintiffs sought to hold the Netherlands and the UN “jointly and severally liable” for the Srebrenica massacre. The Dutch Court of Appeals dismissed the suit against the UN for “lack of jurisdiction,” upholding the principle of UN immunity in international law.

The UN does not have any clear obligations under any human rights treaties and customary international law does not bind it. But UN peacekeepers’ involvement in possible violations of international human rights undermines the UN’s credibility and these issues have to be addressed if “UN Peacekeeping is to continue to operate as a tool to enhance peace and security in the 21st century.”

For more information about these issues or legal issues affecting military personnel contact Peter Gourri today by email or telephone 0207 611 4848.

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