The Mothers of Srebrenica versus the Dutch state

The Dutch state is partially responsible for the deaths of 350 Bosniak men in the Srebrenica massacre. An appeals court in The Hague came to that decision earlier this week, nearly 22 years after the mass killing of Bosnian Muslim men by Bosnian Serb forces. Willem van Genugten, emeritus professor of International Law at Tilburg University, explains what the ruling means for the long-open wound that is Srebrenica.

July 11 will mark the passing of 22 years since lightly-armed Dutch peacekeeping troops turned over 350 Bosnian Muslim men to Bosnian Serb forces. The men were subsequently killed, in what came to be known as the worst massacre on European soil since the Second World War. According to the families of the victims, the Dutch peacekeepers should have known the men they turned away from their UN compound would be massacred. A group of women, the ‘Mothers of Srebrenica’, filed a civil case against the Dutch state, seeking compensation for the government’s failure to protect their sons, husbands, brothers and fathers during the 1995 Bosnian war.

Partial victory

This week, the Court of Appeal in The Hague confirmed the Netherlands’ partial liability in the deaths of the men, upholding the court’s 2014 decision that the Dutch UN peacekeepers – known as Dutchbats – should have realized that the men would be “in real danger of being subjected to torture or execution” if they were forced to leave the compound.

Emeritus professor Willem van Genugten

Is the court’s ruling a victory for the Mothers of Srebrenica? Yes and no, emeritus professor Willem van Genugten says. “The Dutch state has been found partially liable, so it’s only a partial victory”, he explains. “I’d imagine that the Mothers of Srebrenica are relieved that the earlier ruling in this case was upheld, but disappointed that the Dutch state has not been found fully liable for the killings.”

Chances of survival

It is uncertain whether the Muslim men would have survived if they had stayed in the compound. Their chances of survival, if they had stayed in the care of the Dutchbats, has been estimated at around 30 percent. Therefore, the court ruled that the Dutch state is liable for 30 percent of the losses suffered by the Mothers of Srebrenica.

Although this may seem like a macabre calculation, it’s not unusual to express liability in percentages, Van Genugten says. “It may seem strange, but this is how judgements on issues of shared responsibility are made. After weighing the responsibility of the Dutch state, the court determined that it is 30 percent liable for the deaths of 350 men. Such percentages are not very precise, of course, but they are based on a solid weighing of arguments.”

“This is an extremely difficult case”

Responsibility

The difficulty of establishing shared responsibilities is what makes the case of the Mothers of Srebrenica against the Dutch government so complicated, Van Genugten says. “In terms of evidentiary material, this is an extremely difficult case. The legal concepts involved in this case are very complex. Attributing responsibilities is the biggest challenge. That requires careful consideration, which is time-consuming.”

According to Amnesty International, the ruling sets the precedent that governments that provide troops for UN peace missions can be held responsible for their conduct. However, Van Genugten does not believe the ruling will have consequences for future peace operations. “I don’t think this ruling will change anything, because a lot has changed already. After 1995, the Dutch government became more apprehensive about participating in high-risk peace operations, preferring to act with NATO support if the situation so requires.”

Final judgement?

After a string of legal cases regarding the question whether Dutch peacekeepers could and should have done more to protect Muslim men from being killed in the 1995 Bosnian war, the appeals court has delivered a final judgement in the case of the Mothers of Srebrenica against the Dutch government. However, both the Dutch state and the victims’ surviving relatives still have the possibility to fight the ruling by making an appeal in cassation to the Supreme Court, which is the highest court in civil and criminal law in the Netherlands.

The Dutchbat soldiers are not being held responsible personally for the Srebrenica deaths. “The Mothers of Srebrenica chose to file a civil suit against the state, seeking financial compensation. This was not a criminal suit seeking to establish the individual criminal responsibility of Dutchbat soldiers”, Van Genugten explains.

Theoretically, the Dutch peacekeepers could still be prosecuted. “I personally don’t expect that to happen. But if new evidentiary material comes to light, it would be possible.”

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