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States heed the warning: Srebrenica’s survivors make international legal history

A court has found the Netherlands partially responsible for the deaths of residents of the UN “safe area” in Srebrenica, who had sought refuge on property occupied by Dutch peacekeeping forces (known as Dutchbat).  

Photo supplied by author

On 11 July 2014, the world turned its focus to the Srebrenica-Potočari Memorial Center and Cemetery, as it does for a brief moment every year, where 175 families, all survivors of the genocide, interred their loved ones identified over the past year.

Far from the freshly dug graves still bearing temporary markers, Srebrenica’s survivors made international legal history in a Dutch courtroom last Wednesday, bringing a small measure of overdue justice.

The court found the Netherlands partially responsible for the deaths of residents of the UN “safe area” who sought refuge on property occupied by Dutch peacekeeping forces (known as Dutchbat).  

This year marks the nineteenth anniversary since the Srebrenica enclave fell to Serbian and Bosnian Serb forces that killed more than 8,000 men and boys, the largest single crime of the three and a half year Bosnian war and genocide in the determination of the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague.

The plaintiffs in the case represented more than 6000 victims. The court rejected liability for those not on the United Nations base, a disappointing determination for some who see little practical difference between those who made it inside the makeshift fence that formed a perimeter, and those who didn’t, during the chaos of the sweltering summer days following 11 July 1995.

As the enclave fell, Srebrenica’s residents went to the UN compound, a former battery factory, attempting to survive the Serb advance. As the base got crowed, on July 13th, Dutch soldiers forced 300 off United Nations property, turning them directly into the arms of their assassins, after the mass killings had already begun. It is the deaths of these 300 men for which the court has found the government responsible.

 “[Dutch troops] should have taken into account the possibility that these men would be the victim of genocide,” it found.

Later, aided by Dutch peacekeepers, the Bosnian Serb army bused over 25,000 women and children to nearby Tuzla. Men and boys formed a column of an estimated 15,000 who trekked through the hills where many were captured and executed trying to reach Bosnian government territory. Others were immediately round up. Survivors blame the Dutch troops for standing by as the enclave was invaded. The claimants “argue[d] that if an alarm about said war crimes of 12 or 13 July 1995 had been raised, the lives of many could have been saved as this could have prompted the UN, NATO or individual states to launch a direct military intervention.”

Photo supplied by author

This verdict started with a meeting of the members of the family association, Mothers of Enclaves of Srebrenica and Žepa, and a Mostar-based law firm, Kebo and Guzin. The women aided Semir Guzin and Mirsad Kebo, spending months collecting the necessary testimonies and documents. They eventually partnered with a Dutch law firm able to represent them in court in a case that initially asked both the United Nations and the Dutch government to accept responsibility for its roles in the genocide. United Nations immunity was eventually upheld.

This decision follows on the heels of a similar one decided last September brought by Hasan Nuhanović and the family of Rizo Mustafić, an electrician who worked for Dutchbat who died in the genocide. Nuhanović was a Dutchbat translator who lost his entire family – including his parents and his brother – in the fall of the enclave. The fall decision of the Dutch Supreme Court found the government liable for three deaths – that of Mustafić, and Nuhanović’s father and brother, paving the way for compensation claims. This case established the precedent that UN peacekeepers could now be responsible for crimes. The court noted that the “body of facts in this case is more wide-ranging than in the Nuhanović and Mustafić cases…[and] relates to the actions of the government of The Netherlands.”

Wednesday’s finding has been a long time in the making. In June 2004, I took a bus from Sarajevo to The Hague with the women, plaintiffs in this case, during which they handed over their initial paperwork to the government. They carefully planned protests in front of the Dutch parliament, Ministry of Defense, and the Anne Frank House, raising awareness of their suffering. They handed out small books containing Bosnian photographer Tarik Samarah’s pictures of Srebrenica’s crime scenes and its aftermath. In the middle of Amsterdam he captured a survivor standing in front of a poster of Anne Frank and her mother, all three united by the political violence of the 20th century.  

As I outline in Courting Democracy in Bosnia and Herzegovina, Srebrenica’s survivors have expanded the idea of who should be culpable for genocide in the modern era. They have been courageously asking this question for almost two decades. With the help of their lawyers, they may forever change international politics.

They have done so amid continual denial of the genocide by Bosnian Serb and Serbian leaders. In the days before this year’s commemoration, RS President Milorad Dodik mocked their suffering: “Serb people will in the future have to in some way recognize and celebrate Ratko Mladić, Radovan Karadžić…to repay them in some decent way for their contribution…” lauding the work of the chief architects of the genocide.

The significance of this case extends beyond Srebrenica. Lawyers are helping victims of political violence create a longer chain of accountability in other settings.

To mention but one, now significant in the current crisis: In the state of Washington, lawyers brought a suit against Caterpillar Inc. for aiding and abetting war crimes on behalf of the family of Rachel Corrie, a volunteer for the International Solidarity Movement killed in 2003 while she stood defending the homes of Palestinians razed by the Israeli Defense Forces (IDF) in the southern Gaza town of Rafah. They asked the court to consider the culpability of the company for selling armored bulldozers to the Israeli government, including its massive D9 model, it knew would be used to destroy Palestinian homes. The case was dismissed but the question had been posed in a courtroom. Similar ones are sure to follow.

This decision puts states and other institutions on notice: they may be called to account for their actions.

The details of the events of Srebrenica genocide can be found at Srebrenica Mapping Genocide project of the Youth Initiative for Human Rights (YIHR) at: http://www.srebrenica-mappinggenocide.com/en-m/a

About the author

Lara J. Nettelfield (Ph.D., Columbia University) is an Assistant Professor of International Relations at Royal Holloway, University of London, and co-author with Sarah Wagner of Srebrenica in the Aftermath of Genocide (Cambridge University Press, 2014). She also wrote Courting Democracy in Bosnia and Herzegovina: The Hague Tribunal’s Impact in a Postwar State (Cambridge University Press, 2010), winner of the Marshall Shulman Book Award. She tweets @LJNettelfield


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