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ECLI:NL:GHDHA:2017:3376

COURT OF APPEAL AT DEN HAAG Civil-law sector Case numbers : 200.158.313/01 and 200.160.317/01 Case number District Court : C/09/295247 / HA ZA 07-2973 Judgment on appeal of 27 June 2017 in the case of

  1. [appellant 1], living in [place of residency], Bosnia and Herzegovina,
  2. [appellant 2], living in [place of residency], Bosnia and Herzegovina,
  3. [appellant 3], living in [place of residency], Bosnia and Herzegovina,
  4. [appellant 4], living in [place of residency], Bosnia and Herzegovina,
  5. [appellant 5], living in [place of residency], Bosnia and Herzegovina,
  6. [appellant 6], living in [place of residency], Bosnia and Herzegovina,
  7. [appellant 7], living in [place of residency], Bosnia and Herzegovina,
  8. [appellant 8], living in [place of residency]), Bosnia and Herzegovina,
  9. [appellant 9], living in [place of residency], Bosnia and Herzegovina,
  10. [appellant 10], living in [place of residency], Bosnia and Herzegovina,
  11. the Association MOTHERS OF SREBRENICA, registered in Amsterdam, in the case with case number 200.160.317: appellants in the principal appeal, respondents in the cross-appeal, in the case with case number 200.158.313: respondents in the principal appeal, appellants in the cross-appeal, hereinafter referred to as: the Association et al. (plural), attorney: M.R. Gerritsen, LLM of Haarlem, v. THE STATE OF THE NETHERLANDS (Ministry of General Affairs, Ministry of Defence and Ministry of Foreign Affairs), having its seat in The Hague in the case with case number 200.160.317: respondent in the principal appeal, appellant in the cross-appeal, in the case with case number 200.158.313: appellant in the principal appeal, respondent in the cross-appeal, hereinafter referred to as: the State, attorney: G.J.H. Houtzagers, LLM, of The Hague. Appeal proceedings In the case with case number 200.160.317: 1.1 By writ of 14 October 2014, the Association et al. summoned the State to appear in appeal proceedings, moving that the Court of Appeal should reverse the judgment of the District Court of 16 July 2014 in so far as the claims of the Association et al. against the State were dismissed, and that the Court of Appeal, in a new judgment, should allow the claims in their entirety in second instance. In their statement of appeal (with exhibits) of 7 July 2015, the Association et al. changed their claim and put forward 48 grounds for appeal against the judgment. On 26 January 2016, the State contested these grounds in their defence on appeal, also statement of appeal in cross-appeal, and in turn brought a cross-appeal, referring to the grounds submitted in the case with case number 200.158.313 for the details. In the case with case number 200.158.313 1.2 By writ of 9 October 2014, the State summoned the Association et al. to appear in appeal proceedings, moving that the Court of Appeal should reverse the judgment of the District Court of 16 July 2014 and dismiss the claims of the Association et al. in their entirety. In their statement of appeal of 7 July 2015, the State put forward 5 grounds for appeal against the judgment. The Association et al. contested these grounds in their defence on appeal, also statement of appeal in cross-appeal, and in turn brought a cross-appeal referring for the details to the grounds submitted in the case with case number 200.160.
  12. Furthermore, in both cases: 1.3 By an instrument of deposit dated 12 September 2016, the Association et al. filed a flash drive containing images. The following documents that had been filed with the District Court before were not filed with the Court of Appeal: the NIOD [Netherlands Institute for War Documentation] (hereinafter: the NIOD) report of 2002, “Srebrenica. Een ‘veilig gebied’. Reconstructie, achtergronden, gevolgen en analyses van de val van de Safe area” [Srebrenica. A ‘Safe Area’. Reconstruction, backgrounds, consequences and analyses of the fall of the Safe Area], parts I through III (hereinafter: the NIOD report), the Parliamentary Inquiry on Srebrenica: “Missie zonder Vrede” [Mission without Peace], final report submitted to the House of Representatives on 27 January 2003 (Parliamentary Papers II 2002/2003, 28506, nos. 2-3), and the Parliamentary Inquiry on Srebrenica “Missie zonder Vrede”, the interviews (Parliamentary Papers II 2002-2003, 28506, no. 5). These documents are public documents and can be consulted via the Internet. In accordance with the manifest wish of both parties, these documents are part of the case files via the public domain. 1.4 On 6 October 2016, the parties had their cases pleaded submitting and referring to memoranda of oral pleading; the Association et al. by M.R. Gerritsen, LLM and S.A. van der Sluijs, LLM, attorneys of Haarlem, and the State by G.J.H. Houtzagers, LLM and K. Teuben, LLM, attorneys of The Hague. In conclusion, the parties applied for judgment on appeal in both cases. Facts acknowledged between the parties on appeal In both cases: 2.1 The Court of Appeal considers that the following has been acknowledged as having been argued by one party and not contested or not contested on sufficiently reasoned grounds by the other party, as well as in view of the facts found (in Finding of Fact sub 2 or in Assessment sub 4) by the The Hague District Court and what is not contested or no longer contested on appeal. 2.2 Until 1991, the Socialist Federal Republic of Yugoslavia consisted of six (constituent) republics, i.e. Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. These republics were inhabited by different ethnic groups (Croats, Serbs, Muslims, and others) who formed a majority or a minority in the various republics. Throughout the ages there was both peaceful coexistence and conflict. Conflict always moved along the said ethnic lines. In 1991, the constituent republics Slovenia and Croatia declared themselves independent of the Socialist Federal Republic of Yugoslavia. Subsequently, fighting erupted in both republics. 2.3 The warring factions in Croatia reached an armistice agreement on 2 January 1992 and accepted a peace plan, which provided for deploying a UN peacekeeping force. The United Nations Security Council (hereinafter: the Security Council), by Resolution 743 of 21 February 1992, formed the United Nations Protection Force (hereinafter: UNPROFOR) with its headquarters in Sarajevo. The Resolution reads, inter alia: “Concerned that the situation in Yugoslavia continues to constitute a threat to international peace and security (…), Recalling its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security, (…) Convinced that the implementation of the United Nations peace-keeping plan will assist the Conference on Yugoslavia in reaching a peaceful political settlement,
  13. Approves the report of the Secretary-General of 15 and 19 February 1992 (…);
  14. Decides to establish, under its authority, a United Nations Protection Force in accordance with the above-mentioned report and the United Nations peace-keeping plan, and requests the Secretary-General to take the measures necessary to ensure its earliest possible deployment; (…)
  15. Recalls that, in accordance with paragraph 1 of the United Nations peace-keeping plan, the Force should be an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis; (…)
  16. Urges all parties and others concerned to comply strictly with the cease-fire arrangements signed at Geneva on 23 November 1991 and at Sarajevo on 2 January 1992, and to cooperate fully and unconditionally in the implementation of the peace-keeping plan;
  17. Demands that all parties and others concerned take all the necessary measures to ensure the safety of the personnel sent by the United Nations (…)” As from 1 April 1995 UNPROFOR was renamed United Nations Peace Forces (hereinafter: (also) UNPROFOR or UNPF). 2.4 On 3 March 1992, the (constituent) republic of Bosnia and Herzegovina also declared itself independent of the Socialist Federal Republic of Yugoslavia after a referendum. On 27 March 1992, the Bosnian Serbs (the Serbs living in Bosnia) in turn declared themselves independent of this new state of Bosnia and Herzegovina and declared their own independent state, the Republika Srpska. Subsequently, fighting erupted between the army of Bosnia and Herzegovina, dominated by Bosnian Muslims (Armija Bosna I Herzegovina (hereinafter: ABiH)) and the Bosnian Serb army (supported by the rump state Yugoslavia under the command of S. Milošović) (Bosnian Serb Army (hereinafter: BSA) or Vojska Republijke Srpske (hereinafter: VRS)). 2.5 By Resolution 758 of 8 June 1992, the Security Council extended the UNPROFOR mandate to include Bosnia and Herzegovina. 2.6 Srebrenica is a city situated in eastern Bosnia and Herzegovina (hereinafter: the city of Srebrenica). From 1992, eastern Bosnia and Herzegovina was the scene of fighting, first between Muslim fighters and Serbian militias, later between the AbiH and the VRS. As a result, Muslim enclaves developed. The enclave ‘Srebrenica’ was one of them. This enclave, which was controlled by the Muslim fighters and later by the ABiH, consisted of an area of almost 900 square kilometres around the city of Srebrenica in January
  18. After fights with the Bosnian Serbs, this area was reduced to approximately 150 square kilometres around the city of Srebrenica in March
  19. 2.7 In early 1993, Srebrenica was surrounded and became isolated. Relief convoys sent by the United Nations High Commissioner for Refugees (hereinafter: UNHCR) were stopped by the VRS. Helicopters were fired at by the VRS. A humanitarian crisis developed with lack of water, food, electricity and medication. 2.8 Under the circumstances, the then Commander of UNPROFOR, the (French) general Ph.P.L.A. Morillon (hereinafter: Morillon), accompanied by officials from Médecins Sans Frontières (hereinafter: MSF), visited the besieged and overpopulated Srebrenica on 10 March
  20. On 14 March 1993, he addressed a crowd of Bosnian Muslims, promising them that they were under UN protection and that he would not forsake them. 2.9 On 16 April 1993 the Security Council adopted Resolution 819, which included: “
  21. Demands that all parties and others concerned treat Srebrenica and its surroundings as a safe area which should be free from any armed attack or any other hostile act;
  22. Demands also to that effect the immediate cessation of armed attacks by Bosnian Serb paramilitary units against Srebrenica and their immediate withdrawal from the areas surrounding Srebrenica;
  23. Demands that the Federal Republic of Yugoslavia (Serbia and Montenegro) immediately cease the supply of military arms, equipment and services to the Bosnian Serb paramilitary units in the Republic of Bosnia and Herzegovina;
  24. Requests the Secretary-General, with a view to monitoring the humanitarian situation in the safe area, to take immediate steps to increase the presence of UNPROFOR in Srebrenica and its surroundings; demands that all parties and others concerned cooperate fully and promptly with UNPROFOR towards that end; and requests the Secretary-General to report urgently thereon to the Security Council;
  25. Reaffirms that any taking or acquisition of territory by the threat or use of force, including through the practice of “ethnic cleansing”, is unlawful and unacceptable;
  26. Condemns and rejects the deliberate actions of the Bosnian Serb Party to force the evacuation of the civilian population from Srebrenica and its surrounding areas as well as from other parts of the Republic of Bosnia and Herzegovina as part of its overall abhorrent campaign of “ethnic cleansing”; (…)
  27. Demands the unimpeded delivery of humanitarian assistance to all parts of the Republic of Bosnia and Herzegovina, in particular to the civilian population of Srebrenica and its surrounding areas and recalls that such impediments to the delivery of humanitarian assistance constitute a serious violation of international humanitarian law; (…)
  28. Further demands that all parties guarantee the safety and full freedom of movement of UNPROFOR and of all other United Nations personnel as well as members of humanitarian organizations;
  29. Further requests the Secretary-General, in consultation with UNHCR and UNPROFOR, to arrange for the safe transfer of the wounded and ill civilians from Srebrenica and its surrounding areas and to urgently report thereon to the Council; (…)” 2.10 On 18 April 1993, VRS general R. Mladić (hereinafter: Mladić) and AbiH general S. Halilovic (hereinafter: Halilovic), in the presence of the commander of UNPROFOR, concluded a demilitarisation agreement under which all arms in the city of Srebrenica should be handed over to UNPROFOR. On 8 May 1993, they entered into a supplementary demilitarisation agreement pursuant to which the zone to be demilitarised was extended to include the entire enclave of Srebrenica and it surrounding areas. Subsequently, the Bosnian Serbs were to withdraw their heavy weapons which constituted a threat to the demilitarised zones. These agreements will be referred to hereinafter as the demilitarisation agreements. 2.11 On 6 May 1993, the Security Council adopted Resolution 824, which extended the regime of Resolution 819 to five other enclaves within Bosnia and Herzegovina. 2.12 On 15 May 1993, the UN and Bosnia and Herzegovina signed the Agreement on the status of the United Nations Protection Force in Bosnia and Herzegovina (also known as the Status of Forces Agreement, hereinafter: SOFA), which set out the (legal) status of UNPROFOR in Bosnia and Herzegovina. 2.13 By Resolution 836 of 4 June 1993 the Security Council decided, inter alia: “ Reaffirming in particular its resolutions 819 (…) and 824 (…) Reaffirming the sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina and the responsibility of the Security Council in this regard, Condemning military attacks, and actions that do not respect the sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina (…) (…) Reaffirming once again that any taking of territory by force or any practice of “ethnic cleansing” is unlawful and totally unacceptable, (…) Deeply concerned by the continuing armed hostilities in the territory of the Republic of Bosnia and Herzegovina which run totally counter to the Peace Plan, (…) Determined to ensure the protection of the civilian population in safe areas and to promote a lasting political solution, (…) Determining that the situation in the Republic of Bosnia and Herzegovina continues to be a threat to international peace and security, (…)
  30. Reaffirms the unacceptability of the acquisition of territory by the use of force and the need to restore the full sovereignty, territorial integrity and political independence of the Republic of Bosnia and Herzegovina;
  31. Decides to ensure full respect for the safe areas referred to in resolution 824

(1993); 5. Decides to extend to that end the mandate of UNPROFOR in order to enable it, in the safe areas referred to in resolution 824
(1993), to deter attacks against the safe areas, to monitor the cease-fire, to promote the withdrawal of paramilitary units other than those of the Government of the Republic of Bosnia and Herzegovina and to occupy some key points on the ground, in addition to participating in the delivery of humanitarian relief to the population as provided for in resolution 776
(1992)of 14 September 1992; 6. Affirms that these safe areas are a temporary measure and that the primary objective remains to reverse the consequences of the use of force and to allow all persons displaced from their homes in the Republic of Bosnia and Herzegovina to return to their homes in peace, beginning, inter alia , with the prompt implementation of the provisions of the Vance-Owen Plan Court of Appeal: the Peace Plan of January 1993] in areas where those have been agreed by the parties directly concerned; 7. Requests the Secretary-General, in consultation, inter alia, with the Governments of the Member States contributing forces to UNPROFOR: (
  1. a)To make the adjustments or reinforcement of UNPROFOR which might be required by the implementation of the present resolution, and to consider assigning UNPROFOR elements in support of the elements entrusted with protection of safe areas, with the agreement of the Governments contributing forces; (
  2. b)To direct the UNPROFOR Force Commander to redeploy to the extent possible the forces under his command in the Republic of Bosnia and Herzegovina; 8. Calls upon Member States to contribute forces, including logistic support, to facilitate the implementation of the provisions regarding the safe areas, (…) and invites the Secretary-General to seek additional contingents from other Member States; 9. Authorizes UNPROFOR, in addition to the mandate defined in resolutions 770
(1992)of 13 August 1992 and 776
(1992), in carrying out the mandate defined in paragraph 5 above, acting in self-defence, to take the necessary measures, including the use of force, in reply to bombardments against the safe areas by any of the parties or to armed incursion into them or in the event of any deliberate obstruction in or around those areas to the freedom of movement of UNPROFOR or of protected humanitarian convoys; 10. Decides that, notwithstanding paragraph 1 of resolution 816
(1993), Member States, acting nationally or through regional organizations or arrangements, may take, under the authority of the Security Council and subject to close coordination with the Secretary-General and UNPROFOR, all necessary measures, through the use of air power, in and around the safe areas in the Republic of Bosnia and Herzegovina, to support UNPROFOR in the performance of its mandate set out in paragraphs 5 and 9 above; (…)” 2.14 In his report of 14 June 1993, the UN Secretary-General analysed the modalities in which Resolution 836 could be implemented, which included, inter alia: “5. A military analysis by UNPROFOR has produced a number of options for the implementation of resolution 836
(1993), with corresponding force levels. In order to ensure full respect for the safe areas, the Force Commander of UNPROFOR estimated an additional troop requirement at an indicative level of approximately 34,000 to obtain deterrence through strength. However, it would be possible to start implementing the resolution under a "light option" envisaging a minimal troop reinforcement of around 7,600. While this option cannot, in itself, completely guarantee the defence of the safe areas, it relies on the threat of air action against any belligerents. Its principle advantage is that it presents an approach that is most likely to correspond to the volume of troops and material resources which can realistically be expected from Member States and which meet the imperative need for rapid deployment. (...) 6. This option therefore represents an initial approach and has limited objectives. It assumes the consent and cooperation of the parties and provides a basic level of deterrence, with no increase in the current levels of protection provided to convoys of the Office of the United Nations High Commissioner for Refugees (UNHCR). It does however maintain provision for the use of close air support for self-defence and has a supplementary deterrent to attacks on the safe areas. (…)” 2.15 The term “close air support” in the abovementioned report refers to the deployment of air power in direct support of the UN ground forces. “Close air support” is not to be confused with the term “air strikes”, which refers to an air attack of a destructive nature. The application procedure for close air support consisted of two parts: 1. approval by the UN, by, successively, the sector headquarters in Tuzla, UNPROFOR in Sarajevo, the UNPF headquarters in Zagreb, the Crisis Action Team under the command of the chief-of-staff in Zagreb, the Force Commander (Janvier) and the UN Special Envoy for Bosnia and Herzegovina (Akashi), as well as 2. approval by NATO, more particularly by the Commander-in-Chief Allied Forces Southern Europe in Naples, after involvement of the liaison officers in Sarajevo or Zagreb and the Combined Air Operation Center (CAOC) of the NATO airbase in Vicenza. 2.16 The Security Council adopted the option referred to as the ‘light option’ in the above report in its Resolution 844 of 18 June 1993. 2.17 On 3 September 1993, the Dutch Permanent Representative to the UN offered to the UN Secretary-General military advisor a battalion of the Airmobile Brigade (hereinafter: Dutchbat) for the implementation of Resolution 836 in the safe areas referred to therein (term used in paragraph 1 of Resolution 819, see 2.9 above ). On 7 September 1993, the Dutch Minister of Defence repeated this offer to the UN Secretary-General, who accepted it on 21 October 1993. On 12 November 1993, the Dutch Government approved the deployment of Dutchbat. 2.18 On 3 March 1994, Dutchbat relieved the Canadian regiment present in the Srebrenica enclave. In July 1994, Dutchbat I was relieved by Dutchbat II, which was relieved by Dutchbat III in January 1995. 2.19 Dutchbat headquarters was set up in an abandoned factory at Potočari (hereinafter: the compound). The compound was situated in the safe area, at approximately five kilometres from the city of Srebrenica. One Dutchbat company was stationed inside the city of Srebrenica. Besides, Dutchbat manned a number of observation posts (hereinafter also: OPs or Ops). 2.20 Dutchbat was placed under the command of the UN and functioned as an UNPROFOR contingent. The State had handed over command and control to the UN to carry out the mandate in §5 and §9 of Resolution 836 (see 2.13 above). The command and control handed over to the UN by the State is described, inter alia, in the operation order of 14 December 1994 at the relief of Dutchbat II by Dutchbat III. The operation order reads, inter alia: “a. Command (…) Upon arrival in YU [Court of Appeal: Yugoslavia] Dutchbat is uoc [NATO: operational control1 (opcon)] of UNPROFOR”. Note 1 to operational control reads: “OPCON. The authority delegated to a commander to direct forces assigned so that the commander may accomplish specific missions or tasks which are usually limited by function, time or location; to deploy units concerned, and to retain or assign tactical control of those units. It does not include authority to assign separate employment of components of the units concerned. Neither does it, of itself, include administrative or logistic control [NL: onder operationeel bevel (oob- under operational control)]” 2.21 The command and control handed over to the UN by the State included control over the operational implementation of the mandate by Dutchbat. In this respect, Dutchbat was controlled via the UN chain of command of UNPROFOR, which issued operational orders and instructions to the Dutchbat Commander. The State retained the authority to call back troops, discontinue participation in the operation, and to discipline soldiers, and retained control over the preparation of the Dutch troops, personnel matters and material logistics. 2.22 Dutchbat was bound by the codes of conduct and instructions established by the UN chain of command: the Rules of Engagement, the Standing Operating Procedures (hereinafter: SOP), and the Policy Directives drafted by the Force Commander. The Ministry of Defence laid down these codes of conduct and instructions, plus a number of existing rules and rules especially drafted for this mission, in (Dutch) Standing Order 1 (NL) UN Infbat. 2.23 In the period relevant to this case and in so far as significant here, the following individuals held the following positions: Within the UN hierarchy: UN: i.
  1. i)the UN Secretary-General was Boutros Boutros-Ghali (hereinafter: the UN Secretary-General);
  2. ii)the Special Envoy to the UN for Bosnia and Herzegovina was Yasushi Akashi (hereinafter: Akashi); UNPROFOR in Zagreb (Croatia) (from 1 April 1995 UNPF): iii) the Force Commander was (French) Lieutenant General B. Janvier (hereinafter: Janvier);
  3. iv)the Chief of Staff was (Dutch) Brigadier General A.M.W.W.M. Kolsteren (hereinafter: Kolsteren);
  4. v)the Chief of Operations was (Dutch) Colonel J.H. de Jonge (hereinafter: De Jonge); BOSNIA AND HERZEGOVINA COMMAND UNPROFOR in Sarajevo (Bosnia and Herzegovina) (from May 1995 HQ UNPROFOR):
  5. vi)the Commander was (British) Lieutenant General Sir R.A. Smith (hereinafter: Smith); vii) the Deputy Commander was (French) General H. Gobilliard (hereinafter: Gobilliard); viii) the Chief of Staff was (Dutch) Brigadier General C.H. Nicolai (hereinafter: Nicolai);
  6. ix)Assistant Chief of Staff was (Dutch) Lieutenant Colonel J.A.C. de Ruiter (hereinafter: De Ruiter); Sector North East in Tuzla (unit of HQ UNPROFOR):
  7. x)the Commander was (Norwegian) Brigadier General H. Haukland;
  8. xi)the Chief of Staff and Deputy Commander was (Dutch) Colonel C.L. Brantz (hereinafter: Brantz); Dutchbat III in Srebrenica: xii) the Battalion Commander was (Dutch) Lieutenant Colonel Th.J.P Karremans (hereinafter: Karremans); xiii) the Deputy Battalion Commander was (Dutch) Major R.A. Franken (hereinafter: Franken). Also appearing in the documents are the names of (Dutch) Captain J.R. Groen (hereinafter: Groen) and (Dutch) Second Lieutenant J.H.A. Rutten (hereinafter: Rutten). Groen was Commander of B Company. Rutten was Patrol Coordinator of C Company and intelligence officer. Non-UN positions were as follows: In the Netherlands: xiv) the Minister of Defence was J.J.C. Voorhoeve (hereinafter: Voorhoeve);
  9. xv)Chief of the Defence Staff was Lieutenant General H.G.B. van den Breemen (hereinafter: Van den Breemen); xvi) Deputy Commander of the Royal Netherlands Army (hereinafter: RNLA) was Major General A.P.P.M. Van Baal (hereinafter: Van Baal). The Defence Crisis Control Centre (DCCC) monitored from The Hague what happened during the peacekeeping operation from a policy perspective. xvii) the Deputy Chief of Defence Staff (Operations) at the DCCC was Commodore C.G.J. Hilderink (hereinafter: Hilderink). On behalf of NATO a NATO officer was present in Zagreb to liaise with the Commander-in-Chief Allied Forces Southern Europe headquarters in Naples (hereinafter: CINCSOUTH), namely American Admiral Leighton Smith (hereinafter: Admiral Smith or Leighton Smith, not to be confused with the Smith placed at the disposal of the UN referred to under (
  10. vi)above). 2.24 The supply of goods to the safe area went by convoy through largely Bosnian Serb territory. From mid 1994, the Bosnian Serbs refused passage to convoys on their way to the safe area, as a result of which not all humanitarian aid and food intended for the population in the safe area reached its destination. The provisioning of Dutchbat suffered from this, too. 2.25 On 25 and 26 May 1995, NATO carried out air attacks (air strikes) on targets close to the Bosnian Serb government quarter in Pale. Next, the Bosnian Serbs took hundreds of UNPROFOR soldiers captive to use them as hostages in order to ward off further attacks. On 28 May 1995, the Bosnian Serbs occupied two Britbat observation posts and took the British soldiers hostage, after which Britbat retreated to its compound. Pending further orders from Smith, Nicolai and Karremans decided upon consultation that preparations should be made to abandon the observation posts within the hour if necessary. The observation posts would be maintained until further notice or until they were under serious threat, subject to instructions by Nicolai that no unnecessary risk should be run. 2.26 After the said air strikes, UNHCR convoys only sporadically succeeded in reaching Srebrenica, as a result of which the UN could only provide 30% of the food needs in June 1995 (NIOD report p. 1912). 2.27 On 29 May 1995, Smith issued a Post Airstrike Guidance, which read, in so far as relevant here: “7. I have been directed, today 29 May 95, that the execution of the mandate is secondary to the security of UN personnel. The intention being to avoid loss of life defending positions for their own sake and unnecessary vulnerability to hostage taking. My interpretation of this directive is at paragraph 9b”. Paragraph 9b reads as follows, in so far as relevant here: “Positions that can be reinforced, or it is practical to counter attack to recover, are not to be abandoned. Positions that are isolated in BSA territory and unable to be supported may be abandoned at the Superior Commanders discretion when they are threatened and in his judgment life or lives have or will be lost. (…).” 2.28 On 3 June 1995, shootings occurred at OP-E, and OP-E was surrounded by Bosnian Serbs. Dutchbat then requested close air support. The request was denied. Dutchbat then abandoned this observation post in a YPR (a light tracked armoured vehicle), while being shot at by the Bosnian Serbs. Dutchbat did not set fire to OP-E as was a standing order in the event of forced abandonment of an OP (NIOD report p. 2005). 2.29 On 6 July 1995, the Bosnian Serbs launched an attack on the safe area under the command of Mladić. When the Bosnian Serbs approached the city of Srebrenica, the objective of this attack was extended to occupying the city of Srebrenica. 2.30 During this attack on the safe area the ABiH asked Dutchbat repeatedly to be given (back) the arms handed in under the demilitarisation agreements. Dutchbat denied these requests. 2.31 On 6 July 1995, fighting also occurred at observation post OP-F between the Bosnian Serbs and ABiH (NIOD report p. 2100). In the process, observation post OP-F was hit by shells fired from Bosnian Serb tanks twice. That day, the Bosnian Serbs also shelled the city of Srebrenica. A request for close air support by Dutchbat that same day was denied. 2.32 On 8 and 9 July 1995, Dutchbat abandoned the observation posts OP-F, OP-U, OP-S, OP-K, OP-D and (upon retreat) OP-M. When retreating, Dutchbat soldiers did not fire at the Bosnian Serbs. They allowed Bosnian Serbs to disarm them, handed over armoured vehicles and taught them how to drive them. Also, Dutchbat soldiers departed with the Serbs; they were taken prisoner. 2.33 In the morning of 9 July 1995, airplanes appeared above the safe area on the request of HQ UNPROFOR (‘air presence’). UNPROFOR Zagreb did not take a decision on a request for close air support made later that day. 2.34 In the evening of 9 July 1995, Dutchbat received verbal instructions to take up so-called blocking positions to put up a barrier against the advance of the Bosnian Serbs. The order confirming the verbal instructions, drawn up in the Dutch language by De Ruiter and signed by Nicolai, reads as follows: “With the means available you must take up such “blocking positions” that further breakthrough and advance of VRS units towards the city of Srebrenica are prevented. You must do everything possible to reinforce these positions, also in respect of arming them. These blocking positions must be recognisable on the ground. You can expect the supplementary means promised as from Monday, 10 July 1995.” The VRS was informed that if it attacked a blocking position, close air support would be deployed (NIOD report p. 2151). 2.35 In the early morning of Monday, 10 July 1995, Dutchbat took up four blocking positions (Bravo 1-4); Bravo-1 west of the city of Srebrenica, Bravo-2 and 4 on the road from Zeleni Jadar to Srebrenica and Bravo-3 east of Srebrenica. As the position of Bravo-2 was within range of Bravo-4, in actual practice Bravo-2 was not used. At 7:13 p.m. Groen ordered the Bravo-1 crew to retreat to Srebrenica. The crews manning Bravo-3 and 4 also retreated. No close air support was given that day. In the night of 10 to 11 July 1995, the soldiers manning Bravo-1, 3 and 4 stayed in the city of Srebrenica. 2.36 On 10 July 1995, Voorhoeve said in current affairs programme NOVA on Dutch television: “In the next few weeks we have to give topmost priority to the safety of Dutch military personnel. The commanders are instructed to avoid victims first and foremost. I want to see all men and women return home safely. (...) We have spoken to all those commanders, by telephone and otherwise in the past few days. We do not want Dutch personnel to be at risk, to hold untenable positions. Be sensible and bring all our boys and girls home safe and sound.” The said instruction to Dutchbat to prevent victims is also known as ‘the Voorhoeve instruction’. 2.37 In the early evening of 10 July 1995, Karremans and Franken decided to admit refugees to the compound in numbers that would fit into the large vehicle halls within the compound. That evening a hole was made in the fence in the southwestern corner of the compound for that purpose. No refugees entered the compound that evening. 2.38 On Tuesday, 11 July 1995 at around 8:00 a.m., Dutchbat requested close air support. The request was denied. A subsequent request for close air support, made around 10:00 a.m., was approved by the UN around noon and approximately half an hour later by NATO. Bombs were dropped around 2:45 p.m. Around 3:30 p.m. new airplanes took off. They did not drop bombs. Close air support was discontinued. 2.39 On 11 July 1995 Groen ordered Bravo-1 to abandon its position and retreat from Srebrenica towards Potočari together with the Bravo-3 and 4 crew. Franken then ordered Groen to take up a new blocking position at the junction to Susnjari, south of the compound. Dutchbat did so around 4 p.m. Under threat of VRS units this blocking position was abandoned a few hours later and disarmed by Bosnian Serbs. 2.40 On 11 July 1995 around 4:30 p.m., the city of Srebrenica fell and was occupied by Bosnian Serbs. 2.41 Earlier that afternoon, at around 2:30 p.m., a stream of Bosnian Muslim refugees had started to move from the city of Srebrenica to the compound. In the course of the afternoon of 11 July 1995, refugees were admitted to the compound through the hole in the fence until the vehicle halls were full. At 4:30 p.m. the gates to one of the factory sites near the compound were opened. At that point, the hole in the fence had already been closed. 2.42 After the fall of Srebrenica a mini safe area was set up, consisting of the compound in Potočari and a nearby area to the south which housed halls and a coach depot. The area was cordoned off with tape and the access roads with armoured vehicles. Control posts were set up at the edges. Maybe as many as 30,000, but at least approximately 20,000 to 25,000 refugees sought refuge in the mini safe area. About 5,000 of them were put up in the vehicle halls in the compound. 2.43 Approximately 10,000 to 15,000 men from the safe area did not flee to the mini safe area, but instead fled to the woods surrounding the city of Srebrenica (hereinafter: the woods). Around 6,000 of these men fell into Bosnian Serb hands. 2.44 Circumstances in the mini safe area were poor. There was little food, not enough water for all refugees, a shortage of medical resources and lack of hygiene. Temperatures rose to 35 °C in that period. Circumstances deteriorated visibly on 12 and 13 July 1995. 2.45 On 11 July 1995 at 6.45 p.m. Karremans received a fax from Gobilliard with the following contents (hereinafter also: Gobilliard’s order): “a. Enter into local negotiations with BSA forces for immediate cease-fire. Giving up any weapons and military equipment is not authorised and is not a point of discussion. b. Concentrate your forces into the Potočari Camp, including withdrawal of your Ops. Take all reasonable measures to protect refugees and civilians in your care. c. Provide medical assistance and assist local medical authorities. d. Continue with all possible means to defend your forces and installation from attack. This is to include the use of close air support if necessary. e. Be prepared to receive and coordinate delivery of medical and other relief supplies to refugees.” 2.46 In the evening of 11 July 1995, Janvier, Van den Breemen and Van Baal spoke in Zagreb about the situation that had arisen after the fall of Srebrenica. 2.47 In the evening of 11 July 1995, Karremans spoke with Mladić about the evacuation of refugees from the mini safe area twice, and in the morning of 12 July 1995 a third time. Mladić then mentioned the order in which the refugees would be transported. Mladić informed Karremans that males between the ages of 17 and 60 would first be screened for war crimes (inter alia, NIOD report p. 2641). After it had initially been agreed that Dutchbat would supervise the evacuation and arrange transport for the refugees, in his last conversation with Karremans Mladić disclosed that he himself would take care of their transport. 2.48 On 12 July 1995, the Security Council adopted Resolution 1004 ‘Demanding withdrawal of the Bosnian Serb forces from the safe area of Srebrenica, Bosnia and Herzegovina’ (hereinafter: UN Resolution 1004), which included, inter alia, the following: “1. Demands that the Bosnian Serb forces cease their offensive and withdraw from the safe area of Srebrenica immediately; (…) (…) 6. Requests the Secretary-General to use all resources available to him to restore the status as defined by the Agreement of 18 April 1993 of the safe area of Srebrenica in accordance with the mandate of UNPROFOR, and calls on the parties to cooperate to that end.” This Resolution was not complied with. The Bosnian Serbs did not heed the call to cease their offensive and withdraw from the safe area immediately, nor did the Resolution result in an order to Dutchbat to take in positions in and around Srebrenica or otherwise attempt to recapture Srebrenica by military intervention. 2.49 In the early afternoon of 12 July 1995, on the orders of the Bosnian Serbs, buses and trucks (hereinafter always jointly: buses) arrived at the mini safe area. At around 2 p.m., the evacuation of the refugees from the mini safe area started. A massive run on the buses ensued, and there was a threat of refugees trampling each other. The first buses were overcrowded. 2.50 In consultation with the Bosnian Serbs, Dutchbat then supervised the movement to the buses by creating a kind of corridor of vehicles and a human cordon of Dutchbat soldiers and tape. The refugees, called out in numbers by the Dutchbat soldiers, passed through this ‘corridor’ to the buses (see also NIOD report p. 2649). The buses then transported the refugees to Tišca, from where, after marching for kilometres to Kladanj and a bus ride arranged by the UN, they reached a provisional shelter at Tuzla airport (inter alia, NIOD report p. 2651). 2.51 The Bosnian Serbs took male refugees from the rows of refugees on their way to the buses. In the afternoon of 12 July 1995, the Bosnian Serbs started to transport these male refugees in separate buses. 2.52 In the evening of 12 July 1995, the evacuation of refugees stopped. By that time, 4,000 to 5,000 refugees had been evacuated. 2.53 On 12 and 15 July 1995, Dutchbat abandoned the remaining observation posts (OP-A, OP-C, OP-N, OP-P, OP-Q, and OP-R). On 12 July 1995 around 10 p.m., the Bosnian Serbs dropped off the crew of observation post OP-P at the compound. The crew of observation post OP-C was escorted to Milici by the Bosnian Serbs. The crews of the other observation posts were taken to Bratunac by the Bosnian Serbs. 2.54 Various Dutchbat soldiers observed war crimes committed by Bosnian Serbs between 10 and 13 July 1995. 2.55 Dutchbat did not report the war crimes observed by its soldiers within the UN chain of command immediately. Karremans orally informed the Bosnia and Herzegovina Command in Sarajevo of the find of nine bodies by Rutten on Thursday morning 13 July 1995, and also brought this to Nicolai’s attention. Furthermore, Karremans claims to have orally reported within the UN chain of command the observation by a Dutchbat soldier of the execution of a refugee, but this report has not been established for a fact. Dutchbat did not report any other war crimes until after the evacuation. 2.56 In the night of 12 to 13 July 1995, Bosnian Serbs raped female refugees. 2.57 On 13 July 1995, Franken had a list made of male refugees aged between 15 and 60 who were in the compound (hereinafter: “Franken’s list”), which list contained 251 names. He faxed the list to various national and international authorities and told this to the Bosnian Serbs. About 70 men in the compound refused to have their names taken down on the list for fear of trouble instead of protection. 2.58 On 13 July 1995, the evacuation was resumed. When the buses appeared in the morning before the Bosnian Serbs did, Dutchbat just started to escort the refugees, including the men, to the buses. A number of these buses left before the Bosnian Serbs arrived over an hour later. En route, the Bosnian Serbs stopped part of these buses and removed the men from them. 2.59 By the end of the afternoon of 13 July 1995 all refugees in the part of the mini safe area situated outside the compound had been moved out, and a start was made with moving out the refugees staying within the compound. In the evening of 13 July 1995, according to the International Criminal Tribunal for the former Yugoslavia (hereinafter: ICTY) at 8 p.m., the evacuation of these refugees was finished. 2.60 After the fall of Srebrenica, genocide was committed against Bosnian Muslims. As has been established later, buses with male refugees went from Potočari to Bratunac. The men who had not gone to the mini safe area but had fled to the woods and had been taken captive, were also taken to Bratunac. In total, the Bosnian Serbs killed approximately 7,000 male Bosnian Muslims from the safe area in a number of different locations in mass executions, which started on 13 July 1995 in the area north of the city of Srebrenica and subsequently took place from 14 through 17 July 1995 in several places north of Bratunac. Moreover, the Bosnian Serbs killed between 100 and 400 Bosnian Muslim men in Potočari on 12 and 13 July 1995. 2.61 Dutchbat abandoned the compound on 21 July 1995. Facts found in respect of parties to the action 1 through 11 (the Association et al.) 3.1 Before the war, Mrs [appellant 1] lived with he husband and her son in the city of Srebrenica. On 11 July 1995, her husband fled to the woods. He was never found back. Mrs [appellant 1] and her son sought refuge in the part of the mini safe area situated outside the compound. Her son was separated from her on 13 July 1995. She has not seen him since. 3.2 Before the war, Mrs [appellant 2] lived in [place of residency], near Potočari. Her husband and two sons fled into the woods. Remains of her husband’s body were found in a mass grave in 2005. The bodies of her sons have not been found to date. On 11 July 1995, she sought refuge in the part of the mini safe area situated outside the compound. 3.3 Before and during the war, Mrs [appellant 3] lived in Potočari. On 11 July 1995, her husband and two sons fled into the woods. She and her daughter fled to the mini safe area, but were not admitted to the compound. She lost her husband and sons. 3.4 In 1992, Mrs [appellant 4] fled with her husband and children to the city of Srebrenica. On 11 July 1995, two of her sons fled into the woods. She has not seen them alive since. Mrs [appellant 4] fled with her husband to the part of the mini safe area situated outside the compound. On 13 July 1995, she was separated from her husband, whom she has not seen since. The body of one of her sons was identified in 2003. 3.5 From the start of the war, Mrs [appellant 5] lived with he husband and her son in the city of Srebrenica. Her son fled into the woods on 11 July 1995. Mrs[appellant 5], her husband and her brother fled to the mini safe area. They were not admitted to the compound. On 12 July 1995, her brother was taken for questioning by the Bosnian Serbs. He never returned. On 13 July 1995, she was separated from her husband. Her husband’s body was found in a mass grave. She does not know anything about her son’s fate. 3.6 During the war, Mrs [appellant 6] lived with her family in the city of Srebrenica. Her husband was taken captive as a prisoner of war by the Bosnian Serbs in 1993, and has been missing since. On 11 July 1995 Mrs [appellant 6] fled to the mini safe area. On their way there her two sons fled into the woods. Mrs [appellant 6] did not try to get into the compound because she had heard that no more refugees were admitted. The mortal remains of her elder son have been found since. She never saw her other son again. 3.7 Before and during the war, Mrs [appellant 7] lived with her husband and son in [place of residency], close to the compound. Her husband fled to Tuzla before the fall of Srebrenica. Her son fled into the woods on 11 July 1995. His body has been found since. Mrs [appellant 7] fled to the mini safe area and was admitted to the compound. 3.8 From the start of the war, Mrs [appellant 8] lived in the city of Srebrenica. On 11 July 1995, Mrs [appellant 8] and her husband fled to the mini safe area, where she was told nobody could get into the compound anymore. On 13 July 1995 she was separated from her husband. She has never seen him since. 3.9 During the war, Mrs [appellant 9] lived with he husband and two sons in the city of Srebrenica. One son fled at the beginning of the war and survived. During the fall of Srebrenica Mrs [appellant 9] fled with her husband and her other son [name] to the mini safe area. [Name] was admitted to the compound, she and her husband were not. On 12 July 1995, her son [name] was moved from the compound. He has not been found to date. On 13 July 1995, [appellant 9] was separated from her husband when they tried to get to the buses. The mortal remains of her husband were found in 2004. 3.10 In 1993, Mrs [appellant 10] moved to the city of Srebrenica with her parents and sister. Her father fled into the woods on 11 July 1995. Later, his body was found in a mass grave. Mrs [appellant 10] fled with her mother and sister to the mini safe area. They were not admitted to the compound and sought refuge in the part of the mini safe area situated outside the compound. Mrs [appellant 10]‘s mother was raped by the Bosnian Serbs and died in 1996. 3.11 The Association has full legal personality under Netherlands law, and its object is – stated succinctly – promoting the interests of (approximately 6,000) surviving relatives of victims of the fall of Srebrenica. It is authorised under Article 3:305a of the Dutch Civil Code (‘DCC’) to institute the disputed claims, except to claim (an advance payment
  11. of)damages. Claim, basis and defence In both cases: 4.1 On 4 June 2007, the Association et al. summoned both the State and the United Nations before the District Court in The Hague, claiming -concisely summarised- that the court, with immediate effect: I. rules that the State and the United Nations failed imputably in the performance of the obligation vested in Dutchbat towards the women referred to in 1 through 10 as well as the surviving relatives whose interests the Association promotes of protecting the population of the so-called safe area against the Bosnians Serbs;II. rules that the State and the United Nations acted wrongfully to the women referred to in 1 through 10 as well as the surviving relatives whose interests the Association promotes;III. rules that the State and the United Nations violated their duty to prevent genocide, as defined in the Convention on the Prevention and Punishment of the Crime of Genocide signed on 9 December 1948 (hereinafter: the Genocide Convention);IV. orders the State and the United Nations to pay damages to the women referred to in 1 through 10 for the loss and suffering sustained, to be assessed and settled in accordance with the law, making an advance payment for such damages in the amount of € 25,000 per person;V. orders the State and the United Nations to pay the costs of the proceedings. 4.2 The Association et al. have based their claims, stated very succinctly, on the fact that genocide was committed in the eastern Bosnian enclave of Srebrenica in July 1995, and that the women referred to in 1 through 10 and the persons whose interests the Association promotes are surviving relatives of the men and boys who were murdered on that occasion by the Bosnian Serbs. The UN and the State are liable for the loss suffered by them as a consequence because 1. the UN and the State, contrary to undertakings given, failed imputably in the performance of the duty to protect the population in the mini safe area, which duty arose from the agreement between the State and the UN to provide troops for the protection of that population and is deemed a third-party clause within the meaning of Article 6:253 DCC, and 2. they acted wrongfully towards the Association et al. under national and international (humanitarian) law -including the European Convention on Human Rights (hereinafter: ECHR), the International Covenant on Civil and Political Rights (hereinafter: ICCPR), the Geneva Conventions, the UN Charter, the SOP, and the mandate, and 3.they breached the obligation to prevent genocide. 4.3 By judgment of 10 July 2008, the District Court declared it had no jurisdiction to hear the action in so far as it was directed against the UN. After appeal to this Court of Appeal, appeal to the Supreme Court and a complaint to the European Court of Human Rights (hereinafter: ECtHR) this decision was upheld (Supreme Court 13 April 2012, ECLI:NL:HR:2012:BW1999 and ECtHR 11 June 2013, case no. 65542/12). 4.4 The proceedings were then continued between the Association et al. and the State. The Association et al. maintained their claims against the State before the District Court. They blaim the State for the following: i. Dutchbat did too little in the period before the fall of Srebrenica to ensure that convoys with food and humanitarian aid reached the safe area; ii. Dutchbat did too little in the period before the fall of Srebrenica to stop the advance of the Bosnian Serbs and protect the population of the safe area against them, more particularly, Dutchbat:
  12. a)did not put to use the knowledge they had about the intended attack of the Bosnian Serbs;
  13. b)stood by the demilitarisation agreements and refused to return the arms seized when the Bosnian Serbs approached the city of Srebrenica;
  14. c)impeded active resistance by the AbiH;
  15. d)abandoned observation posts;
  16. e)surrendered the blocking positions too readily and too quickly; iii the State first blocked and later stopped close air support to Dutchbat; iv the State turned down the French offer of 10 July 1995 to provide Tigre helicopters and crew, and thwarted plans to recapture Srebrenica after the fall of the city; v Dutchbat failed to abandon immediately the observation posts it still manned after the fall of Srebrenica, contrary to Gobilliard’s order; vi Contrary to Gobilliard’s order, Dutchbat handed over arms and other equipment to the Bosnian Serbs; vii Dutchbat advised the male refugees to flee into the woods; viii Dutchbat did not raise a general alarm about the flight of the male refugees to the woods. ix Dutchbat did not admit all refugees to the compound; x Dutchbat failed to report the war crimes it had observed; xi Dutchbat failed to provide adequate medical care to the refugees; xii Dutchbat cooperated in separating the male refugees from the other refugees during the evacuation; xiii Dutchbat cooperated in the evacuation of the refugees who had been put up in the compound. 4.5 The State put forward a reasoned defence . The District Court’s judgment In both cases: 5.1 By judgment of 16 July 2014, the District Court ruled in the matter referred to above in 4.1 sub II “that the State is liable on account of wrongful act for the loss suffered by the persons represented by the Association et al. referred to under 4.339, which loss resulted from the assistance rendered by Dutchbat at the deportation of the male refugees who in the afternoon of 13 July 1995 were deported from the compound in Potočari by the Bosnian Serbs and subsequently killed” [underlining added by the Court of Appeal]. With the “persons referred to under 4.339” the District Court referred to the family members of the male refugees who were deported from the compound in the afternoon of 13 July 1995 and subsequently killed. The District Court applied as basic principle that it considered as family members the wives and children of the adult males and the parents of underage males (and that it considered as adult males those who had reached the age of eighteen). 5.2 The District Court dismissed any other claims against the State brought by the Association et al. than those concerning the deportation of the men and boys from the compound on 13 July 1995. The claims referred to above under 4.1 sub I, III, and IV, including the claim for an advance payment of damages, were dismissed, therefore. The District Court ordered the State to pay the costs of the proceedings. 6. The full text of the District Court judgment stating the grounds of the above decisions can be found under ECLI:NL:RBDH:2014:8562, and, in English, under ECLI:NL:RBDHA:2014:8748. The Court of Appeal will simply refer to those sources, and will, where necessary, address the grounds for the decision of the District Court in its discussion of the grounds for appeal. Assessment of the appeal Grounds for appeal in the principal and the cross-appeals, extension of the grounds for the claim and scope of the appeal 7.1 In both cases, both parties brought grounds for appeal against the judgment of the District Court. By statement of appeal the Association et al. also stated they wished to increase their claim in the sense that they supported their claim, besides on the grounds given in the initiating summons, also on the grounds given in the body of the statement of appeal. As in both cases the grounds for appeal in the principal appeals are identical to those in the cross-appeals, the Court of Appeal will, for the sake of brevity, refer to them as ‘the Association’s ground for appeal’ or, as the case may be, ‘the State’s ground for appeal’, thereby referring to the ground for appeal in both the principal appeal and the cross-appeal. 7.2 With regard to the claims of the Association et al. referred to above under 4.4 that Dutchbat did too little to ensure that convoys of food and humanitarian aid reached the safe area, that Dutchbat did not put to use the knowledge of the intended attack by the Bosnian Serbs, and that Dutchbat actively thwarted resistance by the AbiH (items i and ii a and c), the District Court ruled that these actions could not be imputed to the State. Against this no grounds for appeal were adduced. Therefore, the Court of Appeal does not take these claims into consideration. I. Non-disclosed documents; obligation to furnish facts and onus of proof 8.1 Ground 1 put forward by the Association et al. relates to the District Court’s judgment that non-disclosure by the State of documents not available to the Association et al. provides no general basis to set lower standards for the Association’s obligation to furnish facts and higher or other standards for the State’s obligation to furnish facts or onus of proof when assessing the case (District Court judgment grounds 4.20 and 4.21). The Association et al. argued that they did not have the Rules of Engagement of UNPROFOR, the documents relating to the consultations within DCCC, the Dutchbat debriefing reports, the daily situation reports, the interviews conducted with (inter alios) Rutten, and the minutes of the Cabinet for 5, 6, 7, and 11 July 1995. As the Association et al. do not have these documents, the Association et al. argue that lower standards should be set to its obligation to furnish facts and its onus of proof, and higher standards to the State’s obligation to furnish facts and the risk of non-persuasion. The State contested this, stating reasons. 8.2 The Court of Appeal states first and foremost that in the adjudication of the case it will not take into account the non-disclosed documents that have not been submitted to the court. The State does not rely on (parts
  17. of)such documents either, however. The Court of Appeal considers that a great deal of information about the incidents at issue in this case is public, including the reports referred to under 1.3, which also describe the substance of the non-disclosed documents, as well as many interviews that have been submitted to the court. It can be assumed that in general, therefore, there is sufficient evidence available to furnish relevant facts with supporting arguments. The Court of Appeal also finds that in so far as information from confidential documents was disclosed via the NIOD report, witness examinations or media fragments (such as the video still showing the minutes of the council of ministers), this information does not support the claim of the Association et al. that the State keeps silent about certain information, or lies. With regard to the documents relating to the DCCC, the debriefing reports, and the situation reports, the Court of Appeal further refers to the considerations below under 12.9, 12.10, and 12.11; and with regard to the minutes of the council of ministers it refers to the consideration below under 52.5. In so far as it was necessary to examine a witness (further), the Association et al. could offer to produce evidence to that effect. 8.3 In view of this, the Court of Appeal sees no reason in the adjudication of the case to set lower standards to the Association’s obligation to furnish facts and higher standards to the State’s obligation to furnish facts, or to set a higher risk of non-persuasion for the State. The Court of Appeal will examine the arguments submitted by the Association et al. and by the State (in each case) on their merits, based on that which has been (sufficiently) argued and whether contested or not contested, and on the law. II. Third-party clause Article 6:253 DCC 9.1 Ground 2 put forward by the Association et al. relates to the District Court’s judgment that the agreement between the State and the UN to contribute troops to implement Resolution 836 (see 2.17 above) does not create a right for the population of the safe area to claim protection by the State (grounds of the District Court judgment 4.22 ff). According to the Association et al. this judgment is wrong and unfounded, and the said agreement contains a third-party clause within the meaning of Article 6:253 DCC. They argued that the State failed attributably to the performance of this obligation towards the Association et al. The Association et al. further argued that the population of the safe area was promised protection several times, and that the State also breached those promises. The State put forward a defence, stating reasons. 9.2 The Court of Appeal presumes (in accordance with the arguments of the Association et al. and in line with its judgment on appeal in the cases of Nuhanović and Mustafić, ECLI:NL:GHSGR:2011:BR0132, under 5.7), that the course of events referred to above under 2.17 implies an agreement as referred to in Article 6:213 DCC between the State and the UN (which the State contested). It is not in dispute between the parties that Dutch law is applicable. 9.3 The existence of a third-party clause within the meaning of Article 6:253 DCC requires, besides acceptance by the third party, that one party to the agreement stipulates a right for the benefit of the third party, and that the other party to the agreement accordingly commits to the third party to grant the third party an independent right of action against this other party. Whether a third-party clause exists is a matter of interpretation of the agreement, whereby all circumstances of the specific case -to be determined according to criteria of reasonableness and fairness- are of decisive importance, including, but not limited to, the meaning that those parties and the third party reasonably attach to its provisions in the given circumstances, and what they could reasonably expect under it (taking into account all specific circumstances of the given case), the wording of the relevant provision in the agreement, the nature of the agreement, and the extent to which it is intended to affect the legal position of third parties. 9.4.1 Prime consideration is that the wording of UN Resolutions 819 and 836 does not explicitly include protection of the population as a duty of UNPROFOR’s. The Association et al. pointed out that the Secretary-General, in a report of 9 May 1994, did expressly define protection of the population as an objective of UNPROFOR. According to this report UNPROFOR construes its mission as follows: “To protect the civilian populations of designated Safe Areas against armed attacks and other hostile acts, through the presence of its troops and, if necessary, through the application of air power, in accordance with agreed procedures” and “Should UNPROFOR determine that activities in those Safe Areas pose a threat to their populations, then it will act in accordance with its responsibilities, in close cooperation with the NATO.” However, from the same report it also follows that this protection depended strictly on the -unspecified- presence of troops and through the application of air power. Air power had to be deployed in accordance with the prevalent procedure, which went via several UN headquarters and NATO (not a party to the agreement referred to here) (see 2.15 above). 9.4.2 There is no evidence whatsoever that it was the intention of the UN and the State to create an independent right of action against the State for the benefit of the population of the safe area -an unknown and unforeseeable number of persons. Also important is that the agreement was not to the effect that the State provide (a complete) UNPROFOR, but UNPROFOR reinforcements. Other battalions from other Member States were active within UNPROFOR for the benefit of this same UN mission. By its nature, the agreement is therefore not an agreement creating an independent right of claim for third parties against one of the Member States with respect to the performance of UNPROFOR. 9.4.3 What is more, within the context of the implementation of UN Resolutions a third-party clause, which creates rights for individual members of the population, may well be at odds with the international-law system of imputation and liability for the actions of UN troops during UN missions. It may not reasonably be expected, and cannot be held at this moment, that the State and the UN implicitly agree to such a third-party clause, i.e. without stating this explicitly. 9.5 In view of all circumstances the Court of Appeal concludes that the agreement between the State and the UN to contribute troops does not create a right for the Association et al. to claim protection of the population of the safe area by the State, or to invoke the agreement against the State in another way. 10.1 The Association et al. put forward the specific promise made by General Morillon to the Bosnian Muslims in Srebrenica in March 1993 about their protection (see 2.8 above). This can be of no avail to them in these proceedings, as there is no indication that Morillon said they would be protected by the State of the Netherlands. Morillon was a French General deployed to UNPROFOR by the UN. This was an announcement that they were under the protection of the UN. For this reason alone, this promise to the population cannot be considered as an undertaking enforceable at law against the State. 10.2 The Association et al. further argued that Dutchbat soldiers promised several times that Dutchbat would protect the population. The court of Appeal holds that if this is true, it was done (according to the Association’s own assertions) within the framework of carrying out UN activities, such as ensuring the handing in of weapons or not returning them. The Dutchbat soldiers had all been placed at the disposal of the UN and placed under the command of the UN. The Dutchbat soldiers worked in UN uniforms (blue helmets) and under the UN flag. The population could see that the Dutchbat peacekeepers had been placed at the disposal of the UN for the UN mission and that they formed part of it. The promises put forward were no undertakings by or on behalf of the State of the Netherlands, therefore. The Association et al.’s offer of proof (statement of appeal under 37) is therefore disregarded as not relevant to the case. 10.3 The conclusion is that no third-party clause exists, nor any promises pursuant to which the Association et al. can invoke an agreement against the State. Therefore, the second ground for appeal is dismissed as unfounded. III. Attribution to the State Extended attribution to the State in view of UN immunity? 11.1 Ground 3 put forward by the Association et al. is directed against the District Court judgment that for the method of attribution it is not relevant that the UN enjoys immunity (District Court judgment grounds 4.3 and 4.35). The Association et al. argued in this respect that the ECtHR did not dismiss the Association’s complaint of violation of Article 6 ECHR (referred to in 4.3 above) as unfounded, but as inadmissible, and that it is wrong to rule that this immunity has no consequences for the assessment of liability by the State. As the ruling was that the right of access to a court of law was not violated on the very ground (inter alia) that the State, contrary to the UN, could not invoke immunity, the Association et al. argued that attribution to the State should occur in the broadest sense possible. The State contested this ground. The Court of Appeal finds as follows. 11.2 The question whether and to what extent acts performed under the UN flag (and for which the UN, under the Convention on the Privileges and Immunities of the United Nations (Treaty Series 1948, no. I 224) is immune from prosecution) should be attributed to the State, is subject to the provisions of written and unwritten (international) law, including, in particular, those drawn up by the International Law Organisation (ILO), laid down in the Draft Articles on Responsibility of International Organisations (hereinafter: DARIO) and the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter: DARS). The fact that the rules laid down in international law could lead to the circumstance that the victims could not hold liable the UN (on grounds of immunity) and subsequently one of the UN Member States (on grounds of non-attributability) for certain acts and war crimes committed by the Bosnian Serbs, cannot be blamed on the State, and it does not follow that more should be attributed to the Member State than what it is liable for under the prevalent rules. This ground for appeal is unfounded, therefore. Attribution to the State, effective control (instruction(s)) 12.1 Not in dispute is that acts performed by Dutchbat can be attributed to the State if the State exercised effective control over those acts. What really matters is the factual control by the State over that particular specific act (or omission), whereby all factual circumstances and the specific context of the case must be considered. Rightfully -and this was not contested- the District Court found that the single fact that within the UN chain of command Dutch military officials had been appointed, that Dutch UNPROFOR officers sometimes interacted directly with Dutchbat, and that communication existed between Dutch UNPROFOR officers and the Dutch government and/or the DCCC, does not entail that the State exercised effective control (grounds for District Court judgment 4.44 - 4.55). As the command and control over Dutchbat had been transferred to the UN, the UN exercised effective control over Dutchbat, in principle. Whether in one or more specific instances the exceptional situation occurred that the State also exercised effective control over certain aspects of acts performed by Dutchbat is something that the Association et al. must argue stating sufficient grounds and must prove when contested. 12.2 Ground 4 put forward by the Association et al. relates to the District Court findings that the State did not issue instructions to Dutchbat until 9 July 1995, and that those instructions were limited to the blocking positions (grounds for the District Court judgment 4.62 - 4.65). According to the Association et al., the District Court failed to recognize that the instructions pertained to giving priority to the safety of Dutchbat itself throughout the Dutchbat operation, and that they referred to: surrendering the observation posts without resistance, abandoning the blocking positions, giving up and handing over arms and equipment, and refusing to return to the population weapons that had been seized, refusing to provide the necessary medical aid to the population and using the means available toward that end, and not protecting the population – all this contrary to orders issued by the UN. According to the Association et al., Dutchbat had made UN orders subordinate to the safety of its own Dutchbat personnel since as early as 8 July 1995. The Association et al. point to remarks made by Voorhoeve on 10 July 1995 about ‘avoiding victims’, ‘giving topmost priority to the safety of Dutch military personnel’ and ‘wanting to see the men and women return home safely’ (see 2.36 above). The Association et al. argued that these remarks formed a pattern and were not limited to an instruction issued by the State about the blocking positions. 12.3 The State challenged this ground, and in particular contested that the State exercised effective control by means of an instruction to Dutchbat to avoid unnecessary victims, as the District Court held. In this respect, the Court of Appeal finds as follows. 12.4 The Court of Appeals holds, as does the State, contrary to the Association et al. and the District Court, that it cannot be established that remarks made by Voorhoeve on 10 July 1995 about ‘avoiding victims’, ‘giving topmost priority to the safety of Dutch military personnel’ and ‘wanting to see the men and women return home safely’ can be considered as the exercise of effective control over specific acts. The procedural documents do not provide a basis for the conclusion that, through these remarks, factual control has been exercised over specific (certain military operations or other specific) acts performed by Dutchbat. The said remarks were of a general nature, and not intended for specific operational (or other) acts, such as abandoning or not abandoning certain observation posts or blocking positions at some point in time, giving up and handing in arms and equipment, or providing medical care, et cetera. The Association et al. recognize this general nature as well, where they argue that the State’s instructions were comprehensive, and that it turned out from the acts performed by Dutchbat that Voorhoeve’s instruction was not limited to the blocking positions but pertained to all aspects of acts performed by Dutchbat’ (statement of appeal nos. 52 and 54). Irrespective of such remarks, the factual acts performed by Dutchbat were governed by specific orders issued by the commanders within the UN chain of command, and not by remarks made by the State. There is nothing to indicate that the State issued specific orders, or caused specific orders to be given in the sense that the safety of Dutchbat personnel had to be given priority over any other consideration.It has also been established that before Voorhoeve made the said remarks, a general superior order had been issued explicitly within the UN chain of command (i.e. by Lieutenant-General Smith) on 29 May 1995 to make the execution of the mandate subordinate to the safety of UN military personnel (see 2.27 above). This was an operational choice made by the UN.That the State in its comments endorsed the priority given to safety because it wanted to see the Dutchbat military personnel return home safe and sound, does not entail that the State exercised factual control over specific operational decisions. 12.5 Contrary to the District Court (see District Court judgment ground 4.66), the Court of Appeal does not consider the statements made by Voorhoeve, Van den Breemen, and Franken, as referred to by the District Court, supportive of the conclusion that the State obtained control over operational affairs via an instruction, or otherwise exercised effective control. These statements are strictly to be construed as (put very succinctly): an expression of hope that measures would be taken by the commanders (Voorhoeve before the Parliamentary Committee of Inquiry (hereinafter: PCI interviews), p. 625), the communication to the UN, after an interview with the Minister, that unnecessary victims should be avoided (Van den Breemen, PCI interviews p.735), and knowledge of the Minister’s opinion or information received from the Minister that there should not be any Dutch casualties or fatalities (Franken, PCI interviews p. 67; Hilderink, PCI interviews pp. 212 and 216). It may be indicative of the expression of an opinion and (urgent) wishes, but does not imply instructions or (other) factual control over specific acts. This remains unchanged if the statements are considered in conjunction with those made by Hilderink (quoted by the Association et al. in its statement of appeal under 75 and 76), to the effect that priority was always given to the safety of Dutchbat troops, and within that framework, to execute the mandate as well as possible. This general communication does not evidence effective control exercised by the State. 12.6 The comments from The Hague cannot be considered separately from a context in which command and control over Dutchbat had not only been transferred to the UN (and was therefore not vested in the State, but solely reserved to the UN) formally, but in which both The Hague as well as the UN and Dutchbat in Bosnia and Herzegovina were very well aware of that transfer in practice when acting and making decisions. This is evidenced by, inter alia, the following statements: - General Nicolai (PCI interviews, p. 257-259): “[inquirer: (...) What it boiled down to in actual practice, was that for the Netherlands and for Karremans you were the most direct point of contact.] But not formally. General Gobilliard was the deputy commander. It was Gobilliard who issued the orders and who had to make the decisions. (...) I was present 24 hours a day at headquarters [Court of Appeal: of UNPROFOR]. For this reason I was more up to date with all developments. Moreover, Dutchbat was a Dutch unit. Very often, contacts went via me, as communication is easier if it can be done in one’s own language. (...) Usually, a sitrep [Court of Appeal: situation report] was issued every day anyway, in writing and orally, to both the Crisis Centre of the Royal Netherlands Army and DCCC. (...) Particularly tactical information on how the situation on the ground was developing and how we responded to it, what measures we took [underlining added by the Court of Appeal]. [Inquirer: Could the Netherlands also submit wishes to you then, considering the situation that was developing?] No, certainly not formally. The unit had been placed under the operational control of the UN. For as long as all orders were within the scope of the mandate, the Netherlands had no control whatsoever. The only thing they could have done, if the need made itself felt at all, was ask the Security Council via the political channel if certain things could be executed differently. [Inquirer: So they could not even have submitted any wishes to you (...)? They could have, but only as a friendly request: could you please take this into account? They could not give any orders. [Inquirer: Clearly no orders, but I am concerned with the wishes. Did they attempt to submit wishes to you?] No (...)” - Voorhoeve (PCI interviews, pp. 623-624): “[Inquirer: On to the blocking position. (...)] (...) We learnt that this was an order issued by Zagreb, we discussed it, everybody had his opinion about it. Consensus was that we agreed with it, nothing better could have been come up with (...) [Inquirer: (...) You discussed it, but how was it passed on or communicated?] All we could do here in The Hague was comment on it, amongst ourselves. We did not have the right or the authority, nor the political will to thwart it; (...) It was our responsiblity to take care of the troops. They were under the command of the UN. We counted on a UN chain of command that was solid. As the crisis developed, it emerged that the UN chain of command showed hitches and was slow. It proved necessary that we started to submit wishes to the UN chain of command. We did so increasingly, but without issuing operational orders. (...) We were lucky that above them [Court of Appeal: above the officers in Tuzla) there was another level, a stronger level, with more countries present, in Sarajevo.” - Van den Breemen (PCI interviews p. 735): “(...) However, I informed the Minister of my skepsis, but I did believe that the commanders in the field were in charge. (...) The Minister (...) agreed. It is the commanders who are in charge, ultimately, with the proviso that the political wish remained that unnecessary victims had to be avoided. As I remember it this was communicated to the UN. Nicolai phoned me in the afternoon an gave me an update about the latest state of affairs. (...)” - Hilderink (PCI interviews, p. 212): “[Inquirer: (...) Did you then get back to Zagreb about the order?] Nee. (...). [Inquirer: (...) Were any orders given to Dutchbat?] No. (...). 12.7 It has been established that the UN gave specific orders to Dutchbat (inter alia about taking up blocking positions). There is no evidence that the State issued specific instructions to Dutchbat, that the State had factual control over UN instructions or that the UN instructions were a response to anything the State said or did. That certain acts performed by Dutchbat followed in time on remarks made by Voorhoeve does not mean that those acts were prompted (in whole or in part) by remarks made by Voorhoeve. 12.8 By intensifying contacts or communicating wishes more clearly, the State did not exercise control in the sense of effective control over specific acts. Informal consultations do not suffice for that purpose. Nor did the above control exist by virtue of the fact that within the UN chain of command some officers were active (the Association et al. pointed to Brantz and Nicolai particularly) who (also) served as point of contact or even promotor of the Netherlands’ interests, for it did not lead to the State becoming part of the UN chain of command, or exerting, as a State, such influence that specific instructions issued by the UN chain of command (such as an instruction to abandon a blocking position) were effectively issued by the State, or partly so. 12.9 Contrary to what the Association et al. argue, discussions in the Prime Minister’s office about the use of anti-tank weapons by the blocking positions do not amount to effective control, if only because the Association et al. failed to argue sufficiently specifically that further to these consultations instructions were issued or could have been issued to Dutchbat by the State. The fact that the DCCC met to arrive at an assessment of situations and to formulate guidelines and priorities for the performance of Dutchbat, does not mean that the State exercised or could exercise factual control over specific operational acts or omissions of Dutchbat, not even if the outcomes of the DCCC consultations were communicated more clearly to people within the UN chain of command as the opinion of the Netherlands (as the NIOD reports on p. 2289). 12.10 With regard to effective control by the State, the Association et al. further argue that situation reports containing all important information were drawn up at the time and dispatched to the responsible Ministers in the Netherlands to provide a good idea of the situation in the field, and that a ‘confidential situation report’ was drawn up between 11 and 21 July 1995. The Association et al. have no access to these reports. They offer proof that an UNPROFOR colonel-commandant stated that these reports should now be declassified, and that the confidential situation report reads: “From the first debriefings of blue helmets who have been released it emerged that male Bosnians had been executed; based on a rough estimate their number was between 50 and 100. (...) It is expected that their findings will not be made public until after Dutchbat’s departure from Potočari, so as not to complicate matters.” The Court of Appeal disregards this offer of proof, because its correctness is not relevant for the assessment of the question whether the State exercised factual control in the sense of effective control over the acts performed by Dutchbat during military operations. These reports were dispatched by Dutchbat to the Netherlands, and reported information originating from Potočari. Nothing has been specifically argued to show that these reports may contain instructions issued by the Netherlands. 12.11 In the explanation to their fourth ground for appeal, the Association et al. refer to possible instructions issued by the State in statements made on 16 and 23 July 1995 by General H.A. Couzy and during debriefings, but they are remarks made after the last refugees had been removed from the compound and the mass executions had already finished (or at least almost). For the sole reason of the absence of a cause-and-effect relationship with the argued wrongful act, this cannot lead to upholding the claim put forward by the Association et al. 12.12 It follows from the above that no effective control by the State can be inferred from remarks that victims should be avoided and that the safety of the troops had priority. This means that ground 4 put forward by the Association et al. -related to the District Court’s ruling that, put succinctly, the District Court interpreted the instructions by the State, as argued, too narrowly- is dismissed as unfounded. In view of the above, the Court of Appeal does not get around to the question whether remarks as referred to above had already been made before 9 July 1995, for answering that question could not result in upholding the claim against the State anyhow. The Court of Appeal also disregards the assertion put forward by the Association et al. that the District Court underestimated the importance of issuing instructions with regard to the blocking positions, as the Court of Appeal, as stated before, cannot establish that instructions were issued about the blocking positions from which effective control by the State could follow. 13.1 Ground 5 put forward by the Association et al. relates to the District Court’s judgment that the Association’s assertion that Dutchbat made too little effort to protect the population in the safe area, does not pertain to acting outside their remit under the mandate on their own authority, but to the operational execution of the mandate under the command and control of the UN (grounds District Court judgment 4.68 and 4.69). The Association et al. pointed out that Dutchbat, as a result of the effective control by the State, acted in contravention of the mandate and the orders issued by the UN. As the Court of Appeal ruled in its assessment of ground 4 that there was no question of effective control as asserted by the Association et al., the fifth ground for appeal does not succeed either. 13.2 In as far as the other grounds put forward by the Association et al. build on the assertions concerning giving priority to the troops’ safety, the Voorhoeve instruction and the discussions within the DCCC, these contentions are unsuccessful on account of the above, as well. Attribution to the State, acting ultra vires 14. The Association et al. further adduced that acts performed by Dutchbat may also be attributed to the State if Dutchbat acted (so-called) “ultra vires”. In ground 6 put forward by the Association et al., the Association et al. argued that Dutchbat acted contrary to instruction 9b of the Post Airstrike Guidance (see 2.27 above), and therefore acted ultra vires, by surrendering observation posts without any resistance. The Association et al. argued that the District Court interpreted the Post Airstrike Guidance of 29 May 1995 wrongly, that the District Court made an incorrect estimate of the risk that Dutchbat crews manning the observation posts ran, that the District Court unjustly did not differentiate between the points in time when those posts were surrendered and established facts wrongly, and that the District Court wrongly disregarded important circumstances pointing to collaboration of Dutchbat with the Bosnian Serbs. The State contested these claims. 15.1 In assessing the question whether Dutchbat acted ultra vires in a way that is attributable to the State, the Court of Appeal finds as follows. 15.2 Not in dispute in this case is that a national contingent placed at the disposal of the UN for UNRPOFOR (such as Dutchbat) is to be considered an ‘organ’ of the UN. Article 7 DARIO provides: “The conduct of an organ of a State (…) that is placed at the disposal of another international organization shall be considered under international law an act of the latter organization if the organization exercises effective control over that conduct.” Article 8 DARIO provides: “The conduct of an organ or agent of an international organization shall be considered an act of that organization under international law if the organ or agent acts in an official capacity and within the overall functions of that organization, even if the conduct exceeds the authority of that organ or agent or contravenes instructions.” (underlining added by the Court of Appeal) It follows from the above that acts conducted by Dutchbat must be considered acts conducted by the UN if they took place ‘in an official capacity and within the overall functions’ of the UN, even if they ran counter to instructions. 15.3 Only if troops acted beyond the ‘official capacity’ or the ‘overall functions’ of the UN organisation (Cf. Article 8 DARIO) – so in the case of Dutchbat: beyond the remit of the capacity and functions conferred on it as peacekeeper – it can be concluded that the conduct cannot be attributed to the UN pursuant to Article 8 DARIO. This does not mean, however, that every departure from an order issued by the UN (or a departure from the interpretation of an order) must be attributed as acting ultra vires to a Member State of the UN, besides or instead of to the UN. Nor can this intention be concluded from the explanation given to Article 7 DARIO by the ILO (to which the District Court referred in its ground 4.58). The control of the State over mechanisms such as recruitment, selection and preparation of the troops, and the control of the State over staff matters and disciplinary measures afterwards, as the District Court has pointed out, are not such that by reason of them the in-situ operational decisions which deviate from a (higher) UN order are attributable to the State. Essentially, the State had precisely NO controlling powers with regard to operational decisions after the transfer of the command and control. 16.1 Neither did Dutchbat act beyond the ‘official capacity’ or ‘the overall functions’ of the UN organisation with regard to operational acts of war, in the opinion of the Court of Appeal. Evaluating the situation in the field was a UN matter. Taking specific decisions about abandoning, reinforcing or recapturing observation posts, about the moment when and the way in which no resistance was put up (anymore) at the observation posts, about taking up or not taking up, moving or removing blocking positions at some point in time, about what to do with their own weapons and the weapons seized, about requesting close air support and the deployment of medical means by the military in the field were all part of the powers and duties of the UN peacekeeper, and were acts in an official capacity and within the overall functions of Dutchbat. 16.2 If specific operational decisions ran counter to the Post Airstrike Guidance of 29 May 1995 or to other (higher) UN orders – about which the parties have a dispute – the ensuing acts cannot be attributed to the State by reason of this alone. With regard to the Post Airstrike Guidance, the Court of Appeal further finds as follows (17.1 - 17.4). 17.1 The Association et al. argued that the Post Airstrike Guidance worded two objectives: preventing the loss of lives in the defence of the observation posts, and preventing the exposure of soldiers to being taken hostage. According to the Association et al., Dutchbat acted in violation of both objectives and abandoned observation posts contrary to the order. They believe this can be attributed to the State. 17.2 The Court of Appeal notes that hostages were taken after an observation post had been captured by the Bosnian Serbs. Not in dispute is that Dutchbat soldiers after this takeover could only choose between returning to Potočari or being taken by the Bosnian Serbs as prisoners of war. In the latter case they exposed themselves to the risk of being used as hostages, which was to be prevented. Neither is in dispute that the retreat to Potočari was unsafe because it went straight through (combatting) ABiH lines. It meant that lives of UN soldiers could be lost during such a retreat, which was (also) to be prevented. In view of this, the choice of the Dutchbat command for one option or the other (in this case: not forbidding them to go with the Bosnian Serbs) was an operational one dictated by the military situation, which was not made beyond the capacity and duty of peacekeeper assigned by the UN, and of which the immediate consequences cannot be considered consequences of acts that are attributable to the State. This remains unchanged although with hindsight this conduct was considered by the French parliament and others a ’tactical error’ or in violation of a UN order. 17.3 The Court of Appeal also notes that in the Post Airstrike Guidance no order was issued never to abandon the observation posts. It provided that positions that could be reinforced or recaptured were not to be abandoned, and that isolated positions that could not be supported could be abandoned if under threat and if lives could be lost. It has been established that Dutchbat (in each individual instance) only abandoned the observation posts when fighting troops were thus close that they were considered a threat and gave rise to -at least- the fear of losing one’s life. On the spot assessment of how realistic the dangers were, whether supplementary means that had been promised would arrive on time, whether reinforcements were possible and whether it would make sense to engage in gunfight with the Bosnian Serbs, are military assessments, and subsequently decisions that were executed by Dutchbat within the remit of the capacity and duties conferred on it by the UN. These acts cannot be attributed to the State, which did not exercise control over them. 17.4 The assertion that the Bosnian Serbs did not use any type of violence against Dutchbat -if true; there was at least the threat of violence- cannot lead to attribution to the State. The question whether Dutchbat should have opened fire against the Bosnian Serbs should be considered in the light of the objective of the UN mission to keep open through non-violence the option of stability and peace by a temporary neutral presence using deterrence by presence instead of deterrence through strength. For this reason alone, the Court of Appeal cannot find that Dutchbat had a duty to become the enemy of one of the warring parties by force of arms. No decision needs to be made on whether the Rules of Engagement meant that fighting was not only allowed when the soldiers themselves or the population entrusted to their care were targeted and fired at, but was also allowed or an obligation when the population that had to be protected was threatened in any other way (as the Association et al. argue and the State contests). Decisions not to open fire (with all that it implied) were (in each case) taken within the UN chain of command, taking into account the capacity and duties of peacekeeper assigned to Dutchbat, without the specific control of the State. The same goes for the assessment (in each case) of the option to impede that arms and equipment were seized when an observation post was occupied. 18. In their explanation to ground 6, the Association et al. pointed out that Dutchbat soldiers gave driving lessons to the Bosnian Serbs after the surrender of an observation post and seizure of armoured vehicles (see 2.32 above). On the basis of the procedural documents (including the UN Resolutions, the placing at the disposal of Dutchbat and the UN instructions and orders submitted to the court), the Court of Appeal cannot establish that giving driving instruction to one of the warring parties after the surrender of the military post formed part of the peacekeeping duties of UNPROFOR. The Court of Appeal refrains from giving a decision on these acts, because it is not sufficiently argued how these acts could have led to the loss to which the claims of the Association et al. pertain. Without further substantiation (which is not given), the Court of Appeal finds – considering what further happened in this war – that there is no cause-and-effect relationship between driving instructions given in a seized armoured vehicle and the loss suffered by the Association et al. 19. The times of surrender of the observation posts, as referred to but not contested by the Association et al. in their explanation of ground 6, can not change the opinion of the Court of Appeal about the claims against the State. The Court of Appeal will not discuss them any further, therefore. 20. The conclusion is that ground 6 put forward by the Association et al. must fail. 21. Grounds 22 through 25 inclusive put forward by the Association et al. relate to the District Court’s judgment that the operational acts of war performed by Dutchbat, which according to the District Court can be attributed to the State, (such as surrendering blocking positions, not abandoning observation posts, and handing over arms and equipment) were not wrongful acts (grounds of the District Court judgment 4.184 - 4.201). In the above, the Court of Appeal ruled (contrary to the District Court) that the operational acts of war performed by Dutchbat are not attributable to the State. An opinion on the wrongfulness or otherwise of these acts is not relevant, therefore, for the decision of allowing or rejecting the claims of the Association et al. The grounds do not succeed. 22. In view of the non-attributability to the State of the abandoning of the observation posts, ground 43 put forward by the Association et al. does not succeed, either, in so far as it is directed against the District Court’s ruling that there is no causal connection between the immediate abandoning of the observation posts and the loss suffered by the appellants. Finally, in view of the above, nor are decisions on the choice of either admitting the wounded to their own military location or transport them or have them transported to other locations attributable to the State. Therefore, the Court of Appeal rules that ground 36 put forward by the Association et al. against the State also fails, and that the connected claim against the State (number 434 in the statement of appeal) to rule that Dutchbat acted wrongfully by not providing adequate medical care to the refugees in violation of the UN mission and UN orders, cannot be found for in this case against the State. Attribution to the State, decision to evacuate on 11 July 1995, role of the UN and the State; transition period from 11 July 1995 11 p.m.: effective control 23.1 Also in dispute is who took the initiative (the State or the UN) on 11 July 1995 to evacuate the refugees from the mini safe area, and to what extent the State exercised control over Dutchbat in this connection. The Association et al. argued that the State initiated the evacuation, in violation of Gobilliard’s order (see 2.45 above). The Court of Appeal finds as follows. 23.2a About the contacts between Voorhoeve and Nicolai on 11 July 1995, Nicolai stated to the Parliamentary Committee of Inquiry: “After I had informed the Minister of the fact that the air strikes had stopped, he asked if I was aware of the extraction plan for Dutchbat. I answered: “Yes” (...). I informed him that, after careful consideration -which took very little time- we in Sarajevo saw no other solution than evacuating the population, which was present there, entirely unprotected and in wretched circumstances; we had no means to do anything whatsoever about it. For reasons of safety or safeguarding the safety of the refugees we saw no other option than to involve Dutchbat and any other UN resources necessary in that evacuation, because we did not want to leave it to the Serbs. He agreed to it immediately.” From the above it turns out that the UN (“we in Sarajevo”) saw no other solution than evacuating the population; the UN (too) had this in mind as the only option. After this conversation with Voorhoeve, Nicolai phoned Karremans, and, as Nicolai stated: “instructed him to put himself forward to the Serbs so as to organise the evacuation of the refugees (...).” 23.2b On 11 July 1995 at approximately 6.30 p.m. a conversation took place between Janvier and Akashi. They discussed the possibility of evacuation of Dutchbat, but no decisions were taken (NIOD report p. 2432). This was at UN level. 23.2c In the evening of 11 July 1995 Van den Breemen and Van Baal spoke with Janvier, passing on to him the State’s wish to withdraw Dutchbat as soon as possible. Van Baal stated about this conversation before the Parliamentary Committee of Inquiry (PCI interviews pp. 344 and 345): “Of course, we also discussed the idea to recapture the enclave by armed force. This suggestion came from Paris. General Janvier and General Van den Breemen did not think this was realistically possible whatsoever. Three options were discussed. In the first place the option whereby Dutchbat abandones the enclave because the battalion could not execute its duties any longer. In the second place the option whereby Dutchbat puts up resistance by force of arms. In the third place the option whereby Dutchbat evacuates either together with the population or after the population. Having considered everything option 3 was chosen unanimously. (...) Dutchbat and the population were to evacuate, either together or consecutively. That was agreed as such with General Janvier. (…) In Bosnia, UNHCR was the highest authority responsible for the refugees. Janvier said very emphatically that it was this organisation which had to provide humanitarian aid in first instance, so that the refugees could effectively be relocated to the Muslim Croatian Federation. This had to be achieved through negotiation. Janvier ordered General Gobilliard to liaise with te Serbs as soon as possible at Sarajevo level (...) to give shape to the evacuation and improve the humanitarian situation. Both with UNPROFOR and with UNHCR very explicit agreements were made by General Janvier.” As a witness in the cases of Nuhanović and Mustafić, Van Baal stated on 23 June 2005 that the arrangements concerning departure were a matter of the UN in Zagreb. 23.2d As a witness in the cases of Nuhanović and Mustafić, Nicolai stated on 17 June 2005: “At that moment [Court of Appeal: late Tuesday evening 11 July 1995, during a telephone conversation with Karremans] I did not discuss it with Gobilliard. I did on Wednesday morning 12 July, during our routine daily meeting. When I spoke to Karremans on the phone, I assumed preparatory measures were already being taken to have transport for the evacuation arranged by the UN.” [underlining added by the Court of Appeal] 23.3 Vis-à-vis what has been established in 23.2a-d, the Court of Appeal does not deem of (sufficient) importance that Janvier stated before the French Parliamentary Committee of Inquiry that the Chief of Staff of the Royal Netherlands Army [Court of Appeal: Van den Breemen] told him in Zagreb that the Dutch government demanded that the Dutch soldiers left the enclave by the next morning. Even if this demand was made, it was discussed within the UN alongside other options according to the said statement, and was not agreed to (Dutchbat did not leave the enclave the next morning). 23.4 The assertion that the UN did not want to evacuate the population is not supported by Gobilliard’s order (see 2.45 above), either. That order contained the instruction, inter alia, to concentrate the troops in the compound in Potočari. The order does not indicate that the UN did not consider the possibility of an evacuation from the compound in Potočari. Moreover, Gobilliard’s order does not affect the agreement reached later by Van Breemen and Van Baal in the evening of 11 July 1995 with Gobilliard’s superior General Janvier, which agreement entailed that the population would indeed be evacuated. 23.5 UN Resolution 1004 (see 2.48 above), which asked to respect the status of the safe area of Srebrenica, provides insufficient basis to assume that the UN did not yet want to evacuate on 12 July 1995, but was about to reoccupy the safe area, as the Association et al. argued. This Resolution reiterated what had been agreed before, asked access to the refugees, and prompted the Security Council to adopt measures to restore the status of safe area. In no way does it show that the UN was in the process of forging military plans to reoccupy the enclave - leaving aside the question whether this could have been done safely in the presence of the (too numerous) population. Moreover, the calls in this Resolution were not obeyed at the time (neither by the UN nor by the Bosnian Serbs; see 2.48 above). 23.6 It turns out from a document written by Karremans dated 12 July 1995, which was submitted by the Association et al. (statement of appeal, exhibit 1), that he was informed (by Mladić), during the negotiations on an immediate ceasefire with the Bosnian Serbs, that in the event of air strikes or close air support, the Bosnian Serbs would shoot and kill the entire compound in Potočari, including all Dutchbat personnel and refugees. Karremans also wrote that he was responsible for over 15,000 people within one square kilometre in an extremely vulnerable position (“sitting duck” - with a view of the Bosnian Serb arms), without being able to defend those people. The document constitutes a description of the situation locally at the time. The Court of Appeal holds that the fact that Karremans did not refer to evacuation provides insufficient basis to establish that the decision to prepare an evacuation had not, in the evening before, been made by (inter alia) the UN. 23.7 The letter written by Janvier to Mladić dated 12 July 1995, referred to by the Association et al. in substantiation of their contention that the UN did not intend to evacuate (statement of appeal, exhibit 2), points out that there is an urgent need for water, food, and medical aid, and proposes to allow helicopters with relief supplies to Potočari, and in due time also emergency aid by road. Considering the grave humanitarian situation at that moment (see also 2.44 above) the Court of Appeal can also not conclude from this letter that the UN still intended to keep the population in the mini safe area longer than would be necessary for evacuation purposes. 23.8 Based on these grounds the Court of Appeal finds that the decision to evacuate Dutchbat and the refugees came about by mutual consultation between Janvier on behalf of the UN on the one side, and Van den Breemen and Van Baal on behalf of the State on the other. In so far as the Association et al. argue in ground 7 that the State, after the fall of the safe area, took over control from the UN and initiated the evacuation of the refugees contrary to Gobilliard’s order (represented in 2.45 above), this ground fails. 24.1 In the newly developed situation in which Srebrenica had fallen and the UN mission had essentially failed, the State decided together with the UN to evacuate the population from the mini safe area. The Dutch government participated in this decision-making process at the highest level. 24.2 With this decision a transition period set in, in which operations in Potočari were wound up and Dutchbat would focus on its humanitarian task and the preparation of the evacuation of Dutchbat and the refugees from the mini safe area. To that extent, the State had effective control. That the State had factual control over other, specific conduct has not been put forward. Ground 7 put forward by the Association et al. must fail. This means that the Court of Appeal will proceed on the basis of the time established by the District Court as the moment the transition period set in, i.e. 11 July 1995 at approximately 11 p.m. The Court of Appeal will also uphold the District Court’s opinion that, having taken the decision together with the UN not to withdraw Dutchbat any earlier than at the same time as, or after, the evacuation of the refugees, the State combined the exercise of its power to withdraw with giving humanitarian aid to and (preparing) the evacuation of the refugees in the mini safe area during the transition period (District Court grounds 4.80 - 4.85). 24.3 In order to clarify matters, the Court of Appeal notes that the State’s control, essentially, was limited to the evacuation of the population and the withdrawal of Dutchbat. Whether it would have been feasible and desirable to oust the Bosnian Serbs by engaging in combat in the presence of thousands of refugees was a matter of military assessments and decisions that had to be taken within the UN chain of command also, possibly in consultation with NATO. The Court of Appeal further refers to the ground given below under 44.2b. By this reason alone, ground 34 of the Association et al. cannot succeed in so far as it is directed against the opinion of the District Court that Dutchbat could not protect the refugees in and around the part of the mini safe area that was situated outside the compound on its own authority, without outside help. Moreover, the Court of Appeal assumes that the Bosnian Serbs could have outnumbered Dutchbat and the refugees by heavy odds; in this connection cf. ground 67.1b below. In view of this, ground 37 put forward by the Association et al. concerning the handing over of arms by Dutchbat soldiers on 12 and 13 July 1995 must fail as well, since the State could not have engaged in fight independently with the Bosnian Serbs even without this handover. 24.4 In so far as ground 8 of the Association et al. built on the previous grounds for appeal, it shares their lot. Attribution to the State, advice to flee into the woods, admission of refugees to the compound: no attribution 25. Based on the above, the Court of Appeal holds (as did the District Court in its ground 4.87) that the State had effective control during the transition period over granting humanitarian aid to and (preparing) the evacuation of the refugees in the mini safe area, so that Dutchbat’s acts in that respect can be attributed to the State, and that effective control did not pertain to the stream of refugees moving from the city of Srebrenica to the mini safe area before the transition period set in, nor to the refugees or Dutchbat’s acts outside the mini safe area. Based on the above grounds, the Court of Appeal, contrary to the District Court, does not attribute the mere acting in violation of a UN order (such as Gobilliard’s order)to the State as acting ultra vires. There is no ground for attribution to the State of acts performed before the evacuation decision of 11 July 1995 and outside the mini safe area. 26.1 Considering the above, the question whether or not Dutchbat soldiers advised Bosnian men to flee into the woods (the men referred to above under 2.43), and if so, whether this was in violation of the substance of Gobilliard’s order, may remain unanswered by the Court of Appeal. There is no evidence that the State had any factual control (and therefore effective control) over such instructions. In view of the findings in 12 - 17 and considering that no facts or circumstances have been put forward to the contrary, it must be considered, too, that when the flow of refugees started and then continued to swell until (no later than) 11 July 1995 at 11 p.m., Dutchbat soldiers took up positions and carried out activities within the remit of their (readily visible) capacity and duties of UN peacekeeper, and based on the assessments of situations made by their superiors within the UN chain of command for the purpose. The instructions given to the male Bosnian Muslims until that time were, therefore, also given during the exercise of their UN duties. Laying down and handing in arms while informing the Bosnian Serbs of this was also done in that capacity, without the control of the State. 26.2 The Association et al. argued in their explanation of ground 9 that Dutchbat instructed the Bosnian men to flee into the woods even after the start of the transition period. However, they failed to substantiate this claim in the face of the State’s assertions giving reasons (also presented and discussed in District Court judgment grounds 4.103 - 4.105), and did not offer sufficiently specific proof. The Court of Appeal therefore assumes that these instructions were not given (or no longer given) then, so that the Court of Appeal does not get round to a discussion of the question whether such instructions during the transition period were (also) attributable to the State. 26.3 In their explanation of ground 8 the Association et al. accuse the State of the fact that Dutchbat had not raised the alarm about the flight of the Bosnian men into the woods. Leaving aside whether this omission is attributable to the State, it does not constitute a wrongful act in the opinion of the Court of Appeal, for there is nothing to indicate that the State was or should have been aware that the fate of these men would be different from that of other refugees who had not come to the mini safe area. There was no reason at the time, therefore, to raise the alarm from the mini safe area about the (alternative) route of these men. In so far as men wished to join the ABiH in fighting, the Association et al. cannot blaim that on the State either. 26.4 It follows from this that ground 33, in which the Association et al. argued that Dutchbat should have raised the alarm about the men in the woods as soon as Dutchbat was aware of the ‘serious risk’ of genocide (Court of Appeal: or of death). In fact, occupants of the enclave and refugees had told Dutchbat in the night of 11 to 12 July 1995 that most young men and fighters had left the enclave to force a breakthrough themselves (statement of Rutten before the Parliamentary Committee of Inquiry, PCI interviews p. 45). 27.1 In so far as the Association et al., at the end of their explanation of ground 8, contest the opinion of the District Court that not admitting any more refugees to the compound even before 11 July 1995 cannot be attributed to the State, the Court of Appeal finds as follows. 27.2 It is established (see 2.37 and 2.42 above) that in the early evening of 10 July 1995, the UN commanders on the scene (Karremans and Franken) decided to admit as many refugees to the compound as would fit into the large vehicle halls within the compound, and that this was approximately 5,000 people eventually. As UNPROFOR commanders, Karremans and Franken had to make this decision, and as commanders within the UN chain of command they had to assess the on-site security situation and possibilities as well as means for protection. Within the UN chain of command they had to follow and give (UN) instructions about the numbers and the place of shelter. They acted within their capacity and duty of UN peacekeeper. The State had no control over this decision at the time – neither over admitting refugees, nor over the number of refugees to be admitted, nor over where they could enter (through a hole in the fence). The decisions about these issues cannot be attributed to the State. 28. Ground 9 (in so far as not yet discussed above) and ground 10 of the Association et al. further pertain to the abandoning of observation posts, the fleeing of Bosnian men into the woods, the scope and meaning of Gobilliard’s order and the interpretation of the concept of effective control. Considering what has been found above, these grounds cannot succeed. Attribution to the State, deployment of air power, French Tigre helicopters: no attribution 29.1 Grounds 11, 12, 13, 14, and 15 of the Association et al. pertain to decisions to request or terminate the deployment of air power and the fact that the State did not accept France’s offer on 10 July 1995 to deploy French Tigre helicopters plus crew for the purpose of reoccupying the enclave (District Court judgment grounds 4.119 - 4.143). 29.2 No facts or circumstances have been put forward on the basis of which it can be established that others than those within the UN chain of command and NATO, as referred to in 2.15, exercised factual control over specific (preparations for) requests for close air support and specific implementing acts to that end, or over the deployment of Tigre helicopters. The military and humanitarian assessments about the feasibility and possible consequences of (continued) close air support were made within the UN and NATO, and that is where the decisions were made. 29.3 The Court of Appeal sees no ground, neither was one put forward by the Association et al., for considering the State authorised to deploy or have deployed independently fighter planes or helicopters above the territory of Bosnia and Herzegovina in order to reoccupy the enclave in that manner. The Court of Appeal follows the District Court therefore in its opinion that agreement and synchronisation about close air support had to be reached first within the UN and NATO (see District Court judgment, ground 4.139). 29.4 With regard to close air support no facts or circumstances were put forward to support the conclusion that the State had effective control over whether Dutchbat requested close air support at any point or not. 29.5a Specific orders issued by the State by which the State prevented Dutchbat to request close air support have not been put forward. 29.5b Neither has it been established that the State prevented that requests for close air support were honoured. The State pointed to Voorhoeve’s statement to the Parliamentary Committee of Inquiry, containing, inter alia, (PCI final report pp. 192 and 193): “When the situation came to a head and it became progressively clear that the Serbs were looking to conquer more than the south corner of Srebrenica, I consulted with General Van Kolsteren, Janvier’s Chief of Staff. He asked me, literally, whether the Dutch government objected to deploying air power, since by then 30 to 35 Dutch soldiers had fallen into the hands of the Serbs and could get killed as hostages. (...) I immediately (...) told him: close air support is inevitable, the UN cannot NOT give close air support.” Voorhoeve implicitly indicated not to object to close air support, and left it to the UN to give close air support. There was no question that the State prevented or stopped close air support, in so far as this was possible at all. 29.5c On 10 July 1995, Nicolai indicated that he wished to keep airplanes at his disposal (NIOD report p. 2180). At 12.00 noon (on 10 July) Nicolai and Zagreb discussed the positions of the Hague with regard to close air support. In the discussion, it was confirmed that close air support was available. This does not indicate that the State prevented or stopped close air support. 29.6 It does not follow from the Association et al.’s allegation that Voorhoeve exerted influence on NATO decisions (which influence the State contested) that military operations are attributable to the State. Both close air support and air strikes required the consent of NATO, to which the Netherlands is a member state. Within NATO a member State can make known its position and, on the other hand, pressure may or may not be exerted on the member state to adopt a different view. From this, it does not follow that the NATO decision is attributable to the member state. Article 59, paragraph 2 DARIO provides as follows: “An act by a State member of an international organization done in accordance with the rules of the organization does not as such engage the international responsibility of that State under the term of this article.” The fact that a member state may express an opinion within the international organisation (in conformity with the rules), does not mean that decisions made by the international organisation are attributable to the member state. Decisions about air strikes and close air support were joint military operational choices of the UN and NATO, prompted by assessments of humanitarian developments, threat of war and on-site risks, and by the role and position of the UN and NATO member states both in this civil war as well as worldwide. In the process, member states may have a say politically, to a greater or lesser extent, without taking over decision-making (wholly or partially) from the UN or NATO. That NATO attempted unsuccessfully to exert pressure on the Netherlands to allow air strikes, as the American diplomat Holbrook wrote in his memoires, or that the UN interrupted or cancelled close air support after a telephone conversation on the subject between Voorhoeve and Akashi, does not mean that terminating close air support can be attributed to the State as a consequence of a (wrongful) act by the State. 29.7 In their explanation of ground 12, the Association et al. argued that the State stated deceitfully that the population and their own troops were at risk in the event of an air strike because they were intermingled with the Bosnian Serbs. The Court of Appeal dismisses this argument and leaves unanswered whether the statements as asserted were made at the time. From the documents in the case and from what the Association et al. put forward themselves, it emerged that the Bosnian Serbs (on each occasion) drew up very closely to the military positions (and even took them over), and that the fleeing population was dispelled ahead of the Bosnian Serbs. Under those circumstances, the Court of Appeal cannot rule that the statement as asserted, that the population and the Dutch troops were at risk in the event of air-bombing the Bosnian Se

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