Credit to BBC News
Recently I had the chance to read through the Srebrenica case of genocide occurred during the Bosnian War.
Caught my attention two factors regarding several documents I read: the role of the United Nations (hereinafter, U.N.) troops, famously known as «Blue Helmets» and the figure of “Commander Responsibility».
Briefly I am going to present some facts about the case: the U.N. troop’s role in the conflict and the judicial case by one the parties to the conflict (Hasan Nuhanović). I am confident that you, dear reader, are going to find interest in the facts of the genocide, so I am going to suggest you to watch a documentary about this genocide in the city of Srebrenica, produced by the BBC.
Context of the war:
On July 11 of 1995, the Bosnian Serbs, led by General Mladic, overran Srebrenica, a Muslim-enclave which had been designated as a U.N. (UNPROFOR) safe-zone. In total, about 8,000 Muslim men and boys were killed over the course of one week, 200 of them had been thrown off the Dutch base. Surviving relatives filed a criminal complaint against three Dutch battalion (hereinafter, Dutchbat) officials claiming they aided and abetted the genocide and war crimes that took place in Srebrenica.
Credit to BBC News
The Supreme Court of the Netherlands (hereinafter, the Dutch Court) decided that the Netherlands, whose troops retreated to a nearby compound during a Bosnian Serb attack, is responsible for the deaths of the three Bosnian men left behind. They were killed alongside thousands of Muslim men and boys at Srebrenica in the middle of July 1995. The three men had sought refuge in the compound of the Dutchbat.
Nevertheless, the Dutchbat made the decision not to evacuate them and informed the men on 13th July 1995 that they had to leave the U.N. safe-zone of Srebrenica. Shortly after leaving the compound the men were killed by the Bosnian-Serb army.
U.N. Blue Helmets:
According to Resolution 836 of June 4, 1993 the U.N. Security Council (hereinafter, Resolution 836) extended the UNPROFOR mandate on the basis of chapter VII of the Charter in order to enable UNPROFOR to counter attacks on the safe areas by deterrence.
According to how the U.N. system is structured, whenever any resolution of the U.N. Security Council (hereinafter, U.N. S.C.) mandates a certain operation, State parties to the U.N.S.C. can voluntarily contribute with all sorts of means (material or of any other kind) at their disposal to respond to the mandate if they wish to, always in respect to the U.N. Charter in general, chapter VII in this particular situation. It happened (as it can be seen in the documentary of the BBC -mentioned at the beginning of the post-.) that not all parties to the U.N.S.C contributed to the Resolution 836 and certainly not with enough means (air support, etc.) which provoked that the Dutchbat was not correctly equipped to deter Mladic’s troops. As a result, the mandate was not successful, and the Dutchbat failed in their responsibility of providing protection to the safe-zone of Srebrenica.
Up until now, the U.N., as an organization, independently of the states responsibility, has not been held responsible for the deaths of the civilians. It has not been clearly defined under International Public Law, how to accommodate the responsibility of organizations such as the U.N., which creates a halo of immunity avoiding any criminal responsibility.
Notion of Commander Responsibility:
Article 28 of the Rome Statute disposes superior responsibility liability for military commanders (also observed under articles 86.2 and 87.1 of the Additional Protocol I of the Geneva Conventions) and other superiors. The rule clearly separates military from other command situations and applies a different mens rea requirement to these situations.
It can be deduced (as of the case that I am mentioned below) from the decision given by the Dutch Court; the consequences of the situation in Srebrenica are clearly attributable to civil authorities too (in this case to the Dutch government). Noting it is a very open interpretation of Superior responsibility applies to civilian authorities, in line with article 28 (b) (iii), once it can be established that indeed they had effective control over their subordinates.
Judicial aspects:
In the course of ‘Laws of War’ that I have studied for the master’s programme I am currently pursuing in Denmark, I chose to analyse this case of genocide. For that matter, I paid particular attention to the legal aspects of the Judgment in the case of the State of the Netherlands v Hasan Nuhanović (victim of the massacre).
Mr. Nuhanović filed a criminal complaint against the State of the Netherland stating that it was responsible for the deaths of three Bosnian men. The case resulted with a positive response to Mr. Nuhanović from the Supreme Court of the Netherlands.
It is interesting to observe how the consequence of this judicial decision has to do with the notion of Commander Responsibility, the responsibility of the Dutch State as a result of the nature of the U.N. Peacekeeping troops.
The consequences of the decision of the Supreme Court of the Netherlands entails in this case, besides the criminal liability of the Dutch battalion, the Dutch government (as the authority also having command and control of the troops; likewise the U.N. itself) with disciplinary power and criminal jurisdiction, was responsible for the deaths, therefore the U.N. cannot be considered the only one responsible for it.
My personal thought on the case
One clear idea that popped into my mind while reading the different resolutions of the U.N.S.C. related to the case of the Bosnian War, the U.N. as an international body, having command and control over the Peacekeeping troops, should have been held responsible for what happened since the chain of command should have been aware, as it was, of what was happening in Srebrenica. Criminal responsibility to the Dutchbat and the government, respectively, for the deaths of the three men left behind, checked. What about the U.N.’s responsibility? Inconclusive.
Another aspect that caught my attention are the thousands of deaths occurred in the safe-zone when Mladic’s troop overrun the city. Besides Mladic’s individual criminal responsibility, what happens to the responsibility of the Dutchbat or that of the U.N.? They clearly failed in their obligation. Families of the thousands of victims filed a criminal complaint against the Dutch government. According to a recent article published by the BBC, «a Dutch court has ruled that the Netherlands is liable over the killings of more than 300 Bosniak (Bosnian Muslim) men and boys at Srebrenica in Bosnia-Hercegovina in July 1995«.
In my analysis of the case for the course of my master’s programme, I was proposing the hypothesis, whether military commanders can be held criminally responsible for their actions, in the case of omission to prevent serious crimes perpetrated by a third party (I have not found the proper legal answer yet).
It can be deduced from the article of the BBC, that indeed criminal responsibility for actions committed by a third party is possible. I am happy to read this news, even though the situation and the meaning of this latest ruling is very complex.
The safe-zone of Srebrenica, falling and resulting in such a massacre was a misfortune chain of small mistakes and bad luck that shouldn´t have happened. Colonel Karremans recognised in the BBC documentary that they were not ready or mentally prepared for such a situation that was about to happen.
Dear reader, thank you one more time for taking time to read my posts.
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Sources of information:
– Supreme Court of the Netherlands. Judgment in the case of the State of the Netherlands v Hasan Nuhanović. Court of Appeal The Hague, LJN: BF0181 (September 6, 2013).
– Rome Statute of the International Criminal Court.
– United Nations Peacekeeping Website.
– United Nations Charter, Chapter VII.
– Resolution 836 of June 4, 1993 the United Nations Security Council.
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