Dutch State Faces New Srebrenica Inquiry

The testimony of former Dutch defence minister Joris Voorhoeve on June 30 ended a round of preliminary hearings to determine if the Netherlands can be held responsible for failing to protect Muslim refugees who took shelter at the United Nations base in Srebrenica after the enclave fell to the Bosnian Serbs in July 1995.

The case being heard at a Dutch national court in The Hague could create an important legal precedent if lawyers succeed in holding a state accountable for the actions of its soldiers during a UN-led mission.

It also provides an opportunity for victims to directly question under oath the people they consider partly responsible for their suffering.

A total of seven Dutch witnesses, mostly military officials, testified about the circumstances surrounding the fall of the enclave and the actions of the Dutch UN peacekeepers, known as Dutchbat, assigned to protect the so-called “safe area” at Srebrenica.

Several days after the enclave fell to Bosnian Serb forces on July 11, 1995, troops under the command of General Ratko Mladic summarily executed almost 8,000 Muslim men and boys from the area. Some were separated from their families, who were then bused out of the enclave. Others attempted to escape on foot through the woods to Bosnian territory, but were taken prisoner and later executed.

The Srebrenica massacre is the only episode in the bloody 1992-95 war in Bosnia that the UN war crimes court for the former Yugoslavia has defined as constituting genocide.

The families of two victims of the massacre who sought refuge at the Dutch army base are looking into the possibility of filing a civil action against the Netherlands state for failing to protect their loved ones when there was ample evidence that the Bosnian Serbs would not treat them in accordance with international humanitarian law.

The preliminary hearings are not binding on any side, but were called so that lawyers can assess whether there is enough evidence to build their case.

Hasan Nuhanovic is a former translator for Dutchbat who lost his family in the tragedy. He was allowed to leave with the peacekeepers together with his father, but the family were told Hasan’s younger brother would have to travel with his mother and the other refugees on the Serb buses.

Hasan's father elected to stay with his younger son and his wife. They have not been heard of since they left the compound.

Rizo Mustafic's family were part of the thousands of frightened refugees who scrambled to the Dutch base in nearby Potocari on the day the enclave fell, begging for protection and assistance.

A Netherlands soldier told Mustafic to leave the compound with his family even though the Dutchbat commanders had included him on the list of local personnel who were to leave with the soldiers, because he had been working as an electrician for the UN.

The Mustafic family left together but were separated by the Bosnian Serbs. Rizo never returned, nor have his remains been found.

His wife and two children, who now live in the Netherlands, have filed the case.

In order to bring such a case, it must be shown that the Dutch state deviated from UN policy, which is exactly what Liesbeth Zegveld, the lawyer for the families, set out to do in the preliminary hearings.

"It is completely new that you try to hold the Dutch state accountable for what happened during a UN mission," said legal expert Heikelina Verrijn Stuart.

If the parties can prove in court that the peacekeepers went against UN standing procedures and orders, the Dutch state becomes legally responsibile for their behaviour if it is deemed to be grossly negligent or seriously unlawful, said Zegveld.

According to the attorneys, the fact that an individual soldier told Mustafic to leave the Potocari compound without checking with his superiors could be interpreted as an example of such gross negligence.

In the case of Nuhanovic's younger brother, the family was told that he could only stay if he had a UN identity card, but that these could not be made up on the compound. Several witnesses have challenged this.

"If you know these cards can be made on the compound, at least you could have saved some of the men," said Zegveld.

Another point revealed in the hearings was the fact that Dutch commander Ton Karremans, in his conversations with UN superiors, said there were only a handful of men among the refugees, when in fact there were over a thousand of them.

"Not passing on information within Dutchbat, and to higher levels, constitutes a great failure of Dutchbat on the ground," said Zegveld. “They were the ones who should have been the eyes and the ears of the operation.”

The lawyers suggest that by not reporting information, Dutchbat were not only unable to act themselves but also prevented the higher echelons of the UN from responding appropriately.

"The question is what information was passed on and what wasn't, and why," said Zegveld.

Despite the fact that many of the witnesses have already been heard in two Dutch inquiries - the 2002 government-commissioned report by the Dutch Institute of War Documentation and a 2003 parliamentary inquiry - Zegveld said the hearings yielded "substantial additional evidence".

The legal team and the families will decide in the next two weeks whether there is enough to continue with the case.

If they decide to do so, they will first have to ask the court to rule whether the Dutch state acted unlawfully. If such a verdict follows, the families can then go on to file claims for compensation, but that is still a long way off.

Regardless of the outcome, Nuhanovic said the fact that the hearings were held is a victory for the victims.

"This is the first time the witnesses have testified in court and under oath. They did not come here on a voluntary basis, they came because they were summoned. This is something I have been working on for years," he said.

“I personally consider it a victory, whatever the outcome.”

Stephanie van den Berg is an AFP reporter in The Hague.