Lawyer Claims Dutchbat Chiefs May Face Trial

Rachel Irwin

Senior Reporter

Friday, 8 July, 2011

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The landmark appeals judgement which this week found the Dutch government liable for the deaths of three Bosnian Muslim men during the 1995 Srebrenica massacre could lead to an official criminal investigation into the actions of top Dutch battalion commanders, a lawyer for the victims told IWPR.

“I am confident that the [Dutch public prosecutor] will decide that the criminal prosecution of Dutchbat commanders is required,” said Liesbeth Zegveld, who represents Hasan Nuhanovic and the family of Rizo Mustafic.

Nuhanovic was a translator for the United Nations at the time of the massacre and the late Rizo Mustafic was an electrician for the Dutch Battalion of UN peacekeepers, known as Dutchbat, who were assigned to protect the eastern Bosnian enclave of Srebrenica after it was declared a so-called safe area in 1993.

About a year ago, the Dutch public prosecutor opened an “informal factual investigation” at Zegveld’s request. She asked for charges of war crimes and genocide against top Dutchbat commanders on behalf of Nuhanovic and the Mustafic family.

The factual investigation should be completed in October, Zegveld said, at which point the prosecutor will decide whether or not to proceed with a formal criminal investigation.

“I believe that the decision of our appeals court now is very supportive of a positive decision because [the public prosecutor] is investigating the facts,” she told IWPR. “The [Dutch] court of appeals has established numerous facts now…which can be used by the public prosecutor.”

On July 11, 1995 the Srebrenica enclave fell to Bosnian Serb forces and thousands of Bosniak (Bosnian Muslim) civilians sought refuge at the UN compound in nearby Potocari. A few thousand were admitted into the compound, while thousands more remained just outside it.

As UN employees, Mustafic and Nuhanovic were allowed into the compound, along with Nuhanovic’s father, mother, and brother. However, the July 5 appeals verdict determined that Dutchbat soldiers subsequently forced Mustafic to leave the compound. They allowed Nuhanovic to stay, but sent away his brother, and his father decided to follow.

The three men were never seen again. Some 8,000 Bosniak men and boys were murdered by Bosnian Serb forces that July in what is considered the worst single atrocity on European soil since World War II.

“The court considers that Dutchbat should not have sent the electrician [Mustafic] and the brother of the interpreter [Nuhanovic] from the compound and should have foreseen that the father would follow the son,” states a summary of the judgement released by the court.

The judges noted that Dutchbat soldiers had already witnessed “several incidents” where Bosniak men gathered outside the compound were beaten or killed by Bosnian Serb forces, and therefore the Dutchbat soldiers knew that the “men ran a great risk” if they left.

The court also rejected the arguments of the Dutch government, which claimed that the state is not liable for acts committed by Dutchbat because they were acting under a UN mandate.

“The court ruled that although Dutchbat was commanded by the UN, after the fall of Srebrenica a special situation arose in which the Dutch government interfered with Dutchbat and the evacuation of refugees,” states the summary. “Given this involvement, the court considers the state responsible for the actions of Dutchbat soldiers against the aforementioned Muslim men.”

The court stressed that the judgement “only refers to the specific situation of these individual cases” and makes no pronouncement as regards any other victims.

While this is the first time a state has been determined liable for the actions of its peacekeepers, the very limited nature of the case means that it is unlikely to lead to a flurry of other civil lawsuits from family members of those who perished in Srebrenica.

In addition, it probably won’t have much impact on the ongoing civil case against the UN and The Netherlands brought by the Mothers of Srebrenica because that case deals with victims who were never let into the UN compound at all.

“I’m not in a position to say they will never be successful in court but I don’t think this decision guarantees a success,” Zegveld said.

Government lawyers have said they have to study the appeals judgement – which overturned a lower court decision - to see if they will appeal it at the Supreme Court of The Netherlands, but Zegveld thinks they probably will.

“The main victory is the facts that have been established,” she said. “That victims were expelled from the United Nations premises; that the Dutch military should have known and actually knew that [the three Bosniak men] would face certain death if they were to be expelled, and that Dutch government intervened in the United Nations command structure – these are all factual determinations that cannot be affected by any appeal in the future.”

Since the facts cannot be altered, any appeal will probably deal with who was responsible for the actions of the peacekeepers – The Netherlands or the UN, which so far has been ruled immune from litigation.

The Netherlands Supreme Court is due to hand down a decision on the immunity issue early next year, said Axel Hagedorn, a lawyer for the Mothers of Srebrenica, who are the plaintiffs in that lawsuit. In 2010, a Dutch appeals court ruled that the UN could not be prosecuted for failing to protect the thousands who died during the massacre.

Hagedorn said he is ready to take the case all the way to the European Court of Justice in Luxembourg. After proceedings have finished against the UN, actions against the other party in his lawsuit – the state of The Netherlands – can begin.

Hagedorn said that even though this week’s verdict doesn’t have much bearing on his own case, it is still incredibly significant.

“I think it has quite a lot of political implications because it shows that after sixteen years of the Dutch state hiding behind the United Nations, always saying, ‘We didn’t do anything wrong, and if we did something wrong, we did it under UN mandate’, now the court has said, ‘No that is not true’,” he told IWPR.

“People in the Netherlands might now be thinking, ‘Yes, maybe we were wrong’, and that is much more important I think,” Hagedorn continued.

In 2002, the findings of an investigation into Dutchbat’s conduct at Srebrenica, commission by the Netherlands government and carried out by the Netherlands Institute for War Documentation, caused a furore in the country, and led to the resignation of the then prime minister, Wim Kok.

It remains to be seen how much this week’s verdict will impact current and future peacekeepers, and if states will be less willing to send them if they could be held liable for the soldiers’ actions.

Rachel Irwin is an IWPR reporter in the Hague.