ECLI:NL:RBDHA:2014:8748

(1)a Declaratory Judgment from the District Court stating it has no jurisdiction over the claims laid against the UN and

(2)Admission of the State as Intervening Party alternatively as Party joining in an action on the side of the UN, in the case against the UN the Judgment of this District Court of July 10th 2008 in which the District Court stated it was not competent to take cognizance of the claim against the UN and in which it established that a decision in the Procedural Issue for Intervention alternatively Joinder may be omitted the Procedural Documents in the proceedings pending on Appeal at The Hague Appeals Court against the Judgment of July 10th 2008 the Judgment of The Hague Appeals Court of March 30th 2010 in which briefly stated the Appeals Court upheld the Judgment of July 10th 2008 the Procedural Documents in the Proceedings Pending in Cassation by Claimants at the Supreme Court against the Judgment of The Hague Appeals Court of March 30th 2010 the Judgment of the Supreme Court of April 13th 2012 that dismissed the Appeal in Cassation the Deed of Depot of May 30th 2012 concerning the deposit of the following documents at the court registry of this District Court by Houtzagers LL.M.:

(1)Nederlands Instituut voor Oorlogsdocumentatie [= Dutch Institute for War, Holocaust and Genocide Studies] (hereinafter: NIOD), Srebrenica. Een ‘veilig’ gebied. Reconstructie, achtergronden, gevolgen en analyses van the fall of een Safe Area [= Srebrenica. A ‘safe’ area. Reconstruction, background, consequences and analyses of the fall of a Safe Area] (Parts I up to and including III), Amsterdam, Boom 2002 (hereinafter: NIOD Report),

(2)Parlementaire enquête Srebrenica Missie zonder Vrede [= Parliamentary committee of inquiry on Srebrenica Mission without Peace] Final Report presented to the Lower House of the Dutch Parliament on January 27th 2003 (Kamerstukken [= Parliamentary papers] II 2002/03, 28506, Nos. 2 to 3) and

(3)Parlementaire enquête Srebrenica, Missie zonder Vrede, [Parliamentary committee of inquiry Srebrenica, Mission without Peace] hearings (Kamerstukken II 2002/2003, 28506, no 5); Answer with Exhibits Reply with Exhibits Rejoinder with Exhibits Claimants’ Petition for Oral Pleadings of October 8th 2013 Cause List Decision of November 13th 2013 allowing the Petition for Pleadings Memoranda of Oral Pleadings handed over by both Parties on April 7th 2014 and the Official Record drawn up of said Pleadings. 1.

1. Finally the District Court gave its ruling on the case today. 2The facts of the case 2.
2. In 1991 the Republics of Slovenia and Croatia declared themselves independent of the Socialist Federal Republic of Yugoslavia after which fighting broke out in both of the Republics. 2.
3. On January 2nd 1992 the warring parties in Croatia concluded a ceasefire and accepted a peace plan that made provision for the posting of a UN peacekeeping force. The Security Council of the United Nations (hereinafter to be referred to as: the Security Council) in its Resolution 743 of February 21st 1992 set up the United Nations Protection Force (hereinafter to be referred to as: UNPROFOR) with its headquarters in Sarajevo. As of April 1st 1995 UNPROFOR was renamed the United Nations Peace Forces (hereinafter to be referred to as: UNPF). 2.
4. On March 3rd 1992 the Republic of Bosnia-Herzegovina declared itself independent of the Socialist Federal Republic of Yugoslavia. After the Bosnian Serbs had declared the independence of the Republika Srpska on March 27th 1992 fighting broke out between the army of Bosnia-Herzegovina (Armija Bosna I Herzegovina (hereinafter to be referred to as: ABiH)) and the Bosnian-Serb Army (hereinafter to be referred to as: BSA) or Vojska Republijke Srpske (hereinafter to be referred to as: VRS). 2.
5. In Resolution 758 of June 8th 1992 the Security Council extended UNPROFOR’s mandate to include Bosnia-Herzegovina. 2.
6. From 1992 onwards fighting took place in the eastern part of Bosnia-Herzegovina initially between Muslim jihadis and Serbian militias and later between ABiH and VRS. This led to the establishment of Muslim enclaves in eastern Bosnia-Herzegovina one of which was Srebrenica. To start with in January 1993 the enclave of Srebrenica first under jihadi control and later that of the ABiH comprised an area of 900 square kilometres skirting the town but in March 1993 after fighting with the Bosnian Serbs this was reduced to an area of just 150 square kilometres. 2.
7. On March 10th 1993 the then Commander of UNPROFOR, the (French) General P.P.L.A. Morillon, accompanied by employees of Medicins Sans Frontières (hereinafter to be referred to as: MSF), visited Srebrenica that was then under siege and overpopulated and where vital necessities were almost non-existent. On March 14th 1993 Morillon addressed a crowd of Bosnian Muslims in Srebrenica and promised them that they were under the protection of the UN and that he would not abandon them. 2.
8. On April 16th 1993 Security Council Resolution 819 was adopted the substance of which included the following: “
9. 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;
10. 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; (…)
11. 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;
12. 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;
13. 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”.” 2.
14. On April 18th 1993 in the presence of the Commander of UNPROFOR General R. Mladić (hereinafter: Mladić) of the VRS and General S. Halilovic (hereinafter to be referred to as: Halilovic) of the ABiH concluded a demilitarisation agreement on which grounds – where relevant here – in any case all of the weapons in the town of Srebrenica had to be handed in to UNPROFOR. 2.
15. On May 6th 1993 the Security Council adopted Resolution 824 extending the scope of Resolution 819 to five other enclaves in Bosnia-Herzegovina. 2.
16. On May 8th 1993 in the presence of the Commander of UNPROFOR Mladić and Halilovic concluded a supplementary demilitarisation agreement. Where relevant here, the substance of this agreement consisted of extending the area where weapons had to be handed in to encompass the entire enclave of Srebrenica. Once this had been accomplished the Bosnian Serbs would withdraw their heavy weaponry that had formed a threat to the demilitarised zones. The agreements referred to under 2.8 and 2.10 will be referred to hereinafter jointly as: ‘the demilitarisation agreements’. 2.
17. On May 15th 1993 the UN and Bosnia-Herzegovina signed the Agreement on the status of the United Nations Protection Force in Bosnia and Herzegovina (known also as the Status of Forces Agreement hereinafter to be referred to as: SOFA). 2.
18. Under Resolution 836 of June 4th 1993 the Security Council decided inter alia the following: “Reaffirming in particular its resolutions 819 (…) and 824 (…) (…)
19. 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; (…) (…) 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; (…)” 2.13. In his report of June 14th 1993 the UN Secretary-General provided an analysis of ways in which Resolution 836 could be implemented, including 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. (…)” The Security Council adopted this in Resolution 844 of June 18th 1993. 2.14. On September 3rd 1993 the Permanent Representative of The Netherlands to the UN offered to put at the disposal of the military advisor to the Secretary-General of the UN a battalion of the Airmobile Brigade (hereinafter referred to as: Dutchbat) to implement in particular Resolution 836 across the safe areas it cited. The Dutch Minister of Defence repeated the offer to the Secretary-General of the UN on September 7th 1993 who accepted it on October 21st 1993. On November 12th 1993 the government of The Netherlands approved posting Dutchbat abroad. 2.15. On March 3rd 1994 Dutchbat relieved the Canadian regiment Canbat of its duties. In July 1994 Dutchbat I was relieved by Dutchbat II that in turn was relieved by Dutchbat III in January 1995. 2.16. The headquarters of Dutchbat were located at an abandoned factory site in Potočari (hereinafter to be referred to as: the compound). Potočari lay within the safe area about five kilometres from the town of Srebrenica where a company of Dutchbat was encamped in addition to which it manned a number of observation posts (hereinafter to be referred to as: OPs). 2.17. The UN chain of command provided Dutchbat with fixed rules of engagement and instructions: the Rules of Engagement, the Standing Operating Procedures (hereinafter referred to as: SOP) and the Policy Directives as set up by the Force Commander. The Ministry of Defence set down these rules of engagement and instructions, as well as a number of already existing rules and rules specially set up for this particular mission in the Dutch Standing Order 1 (NL) VN Infbat. 2.18. Where relevant here within the hierarchy of the UN the following persons in the period concerned held the following positions: UN

1. i)The UN Secretary-General was Boutros Boutros-Ghali (hereinafter to be referred to as: the Secretary-General of the VN)
2. ii)The Special UN envoy for Bosnia-Herzegovina was Yasushi Akashi (hereinafter to be referred to as: Akashi) UNPROFOR at Zagreb, Croatia as of April 1st 1995 UNPF iii) Force Commander was the French Lieutenant General B. Janvier (hereinafter to be referred to as: Janvier)
3. iv)Chief of staff was the Dutch Brigadier General A.M.W.W.M. Kolsteren (hereinafter to be referred to as: Kolsteren)
4. v)Head of operations was the Dutch Colonel J.H. De Jonge (hereinafter to be referred to as: De Jonge); BOSNIA-HERZEGOVINA COMMAND UNPROFOR at Sarajevo, Bosnia-Herzegovina, as of May 1995 HQ UNPROFOR
5. vi)Commander was the English Lieutenant General Sir R.A. Smith (hereinafter to be referred to as: Smith) vii) Deputy Commander was the French General H. Gobilliard (hereinafter to be referred to as: Gobilliard) viii) Chief of staff was the Dutch Brigadier General C.H. Nicolai (hereinafter to be referred to as: Nicolai)
6. ix)Assistant Chief of staff was the Dutch Lieutenant Colonel J.A.C. de Ruiter (hereinafter to be referred to as: De Ruiter) Sector North East at Tuzla (part of HQ UNPROFOR) (
7. x)Commander was the Norwegian Brigadier General H. Haukland (
8. xi)Chief of staff and Deputy Commander was the Dutch Colonel C.L. Brantz (hereinafter to be referred to as: Brantz) Dutchbat III at Srebrenica xii) Battalion Commander was the Dutch Lieutenant Colonel T.J.P. Karremans (hereinafter to be referred to as: Karremans) xiii) Deputy Battalion Commander was the Dutch Major R.A. Franken (hereinafter to be referred to as: Franken) In The Netherlands unconnected to the UN the following positions were held xiv) Minister of Defence was J.J.C. Voorhoeve (hereinafter to be referred to as: Voorhoeve)
9. xv)Chief of the Defence Staff was Lieutenant General H.G.B. van den Breemen (hereinafter to be referred to as: Van den Breemen) xvi) Deputy Commander of the Koninklijke Landmacht (the Royal Netherlands Army hereinafter to be referred to as: KL) was Major General A.P.P.M. Van Baal (hereinafter to be referred to as: Van Baal). 2.19. The supply of goods to the safe area went by convoy through largely Bosnian Serb territory. As of mid 1994 the Bosnian Serbs refused to sanction convoys travelling to the safe area meaning not all the humanitarian help and food intended for the populace living in the safe area arrived at its destination. Moreover the provisioning of Dutchbat suffered because of this. 2.20. On May 29th 1995 Smith issued a Post Airstrike Guidance that where relevant here read as follows: “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 – where of relevance here – as follows: “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 Commander’s discretion when they are threatened and in his judgment life or lives have or will be lost. (…).” 2.21. On June 3rd 1995 the Bosnian Serbs surrounded observation post OP-E. In response Dutchbat requested close air support but as the request was denied Dutchbat abandoned the observation post. 2.22. On July 6th 1995 under the command of Mladić the Bosnian Serbs began to attack the safe area. Once the Bosnian Serbs had approached the town of Srebrenica they expanded the aim of their attack to taking the town of Srebrenica. 2.23. During this attack on the safe area ABiH submitted various requests to Dutchbat to once again have at their disposal the weapons that had been handed in under the demilitarisation agreements but Dutchbat denied all such requests. 2.24. On July 6th1995 the Bosnian Serbs began shelling the town of Srebrenica. A request for close air support from Dutchbat that was made on the same day was denied. 2.25. On July 8th 1995 the Bosnian Serbs deployed tanks to fire on observation post OP-F. They also shelled the town of Srebrenica. On that day Dutchbat requested close air support but this was denied. Dutchbat then abandoned observation post OP-F. 2.26. On July 8th 1995 Dutchbat also abandoned observation posts OP-U, OP-S, OP-K and OP-D. 2.27. In the morning of July 9th 1995 in response to a request from HQ UNPROFOR airplanes appeared above the safe area a so-called ‘air presence’. UNPF Zagreb took no decision on a request for close air support submitted later that same day. 2.28. On July 9th 1995 Dutchbat abandoned observation post OP-M. 2.29. On July 9th 1995 Dutchbat was given an order to take up so-called blocking positions to throw up a barrier in the face of the advancing Bosnian Serbs. The order drawn up by De Ruiter in the Dutch language and signed by Nicolai that the oral command given earlier that evening confirms reads as follows: “With the resources at your disposal you should take up ‘blocking positions’ to prevent any further breach in the line of defence and advance by the VRS units in the direction of Srebrenica town. Everything possible must be done to further reinforce these positions including arming them. These blocking positions must be recognisable on the ground. You can expect the supplementary means we have promised you to arrive as of Monday July 10th 1995.” 2.30. In the early morning of July 10th 1995 Dutchbat took up blocking positions but gave them up again later that same day. 2.31. On July 10th 1995 Dutchbat made three requests for close air support none of which led to actual air support being given on that day. 2.32. On July 11th 1995 at about 08:00 hours Dutchbat requested close air support. The request was denied. A following request for air support at about 10:00 hours was approved at about 12:00 hours by the UN and roughly half an hour after that by NATO. At about 14:45 hours bombs were dropped in the direction of the VRS tanks. At about 15:30 hours airplanes once again took off that dropped no bombs. After that close air support came to an end. 2.33. On July 11th 1995 at about 16:00 hours Dutchbat took up a new blocking position to the south of the compound that they abandoned a few hours later. 2.34. On July 11th 1995 at about 16:30 hours the town of Srebrenica fell and was captured by the Bosnian Serbs. 2.35. Earlier that afternoon at about 14:30 hours Bosnian Muslim refugees began to stream out of the town of Srebrenica and head towards the compound. A mini safe area was set up there consisting of the compound and the area of Potočari that lay close by with factory premises and a bus depot. About 20,000 to 25,000 refugees sought refuge in the mini safe area. About 5,000 of them were housed in the compound. 2.36. Around 10,000 to 15,000 men from the safe area did not flee to the mini safe area with factory but to the woods in the vicinity of the town of Srebrenica (hereinafter to be referred to as: the woods). About 6,000 of these men fell into Bosnian Serb hands. 2.37. On July 11th 1995 at about 18:45 hours Karremans received a fax from Gobilliard the substance of which was as follows (hereinafter also referred to as: the order from Gobilliard): “a. Enter into local negotiations with BSA forces for immediate ceasefire. 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.” 2.38. In the evening of July 11th 1995 Janvier, Van den Breemen and Van Baal held joint talks in Zagreb to discuss the situation that had developed consequent upon the fall of Srebrenica. 2.39. In the evening of July 11th 1995 Karremans spoke with Mladić on two separate occasions about evacuating the refugees from the mini safe area and in the morning of July 12th 1995 for a third time. 2.40. In the early afternoon of July 12th 1995 on the orders of the Bosnian Serbs buses arrived and lorries (hereinafter to be referred to jointly as: the buses) at the mini safe area. At about 14:00 hours the evacuation of the refugees from the mini safe area began. The Bosnian Serbs who had announced they would be screening able-bodied men for war crimes pulled out men from the rows of refugees who were heading towards the buses. In the afternoon of July 12th 1995 the Bosnian Serbs began to carry off the men in separate buses. After the evacuation of the refugees had been stopped in the evening of July 12th 1995 it was resumed in the morning of July 13th 1995. At the end of the afternoon the last of the refugees remaining in the compound were carried off. 2.41. On July 12th and 15th 1995 Dutchbat abandoned its remaining observation posts (OP-A, OP-C, OP-N, OP-P, OP-Q and OP-R). 2.42. On July 12th 1995 the Security Council adopted Resolution 1004 the substance of which included 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 never observed. 2.43. After the fall of Srebrenica the Bosnian Serbs killed more than 7,000 men from the safe area most of them in mass executions in the period from 14th up to and including 17th July 1995. 2.44. Dutchbat left the compound on July 21st 1995. 2.45. As regards [Claimant 1] et al, where relevant here, the following facts have been established: 2.45.1. Before the war Claimant [Claimant 1] lived with her husband and son in the town of Srebrenica. On July 11th 1995 the husband of [Claimant 1] fled into the woods and was never found again. [Claimant 1] and her son sought refuge in the part of the mini safe area that lay outside the compound. On July 13th 1995 she and her son became separated. She has not seen him again since. 2.45.2. Before the war Claimant [Claimant 2] lived in Sućeska, near to Potočari. Her husband and two sons fled into the woods. Remains of her husband’s body were found in a mass grave in 2005. To this day the bodies of her sons have not been found. On July 11th 1995 [Claimant 2] sought refuge in the part of the mini safe area that lay outside the compound. 2.45.3. Both before and during the war Claimant [Claimant 3] lived in Potočari. Her husband and two sons had fled into the woods on July 11th 1995. [Claimant 3] fled to the mini safe area along with her daughter where they were not allowed into the compound. [Claimant 3] lost both her husband and her sons. 2.45.4. In 1992 Claimant [Claimant 4] fled to the town of Srebrenica together with her husband and children. On July 11th 1995 two of her sons fled into the woods. She never saw them alive again. [Claimant 4] fled with her husband to the part of the mini safe area that lay outside the compound. On July 13th 1995 she became separated from her husband and she never saw him again. In 2003 positive identification of the body of one of her sons did take place. 2.45.5. From the outbreak of war Claimant [Claimant 5] lived with her husband and son in the town of Srebrenica. Her son fled into the woods on July 11th 1995. [Claimant 5] and her husband fled to the mini safe area. They were refused entry to the compound. On July 13th 1995 she became separated from her husband. The body of her husband was found in a mass grave. She knows nothing of the fate of her son. 2.45.6. During the war Claimant [Claimant 6] lived with her family in the town of Srebrenica. In 1993 her husband was taken prisoner of war by the Bosnian Serbs and has been reported missing since then. On July 11th 1995 [Claimant 6] fled to the mini safe area. She made no attempt to enter the compound, as she had heard that no more refugees were being allowed in. Her two sons fled into the woods. The mortal remains of her eldest son were found thereafter; she never saw her other son again. 2.45.7. Before and during the war Claimant [Claimant 7] lived in Potočari with her husband and son near to the compound. Her husband fled to Tuzla before the fall of Srebrenica. On July 11th 1995 her son fled into the woods after which his body was found. [Claimant 7] fled to the mini safe area where she was allowed to enter the compound. 2.45.8. From the outset of war Claimant [Claimant 8] lived in the town of Srebrenica. On June 11th 1995 [Claimant 8] and her husband fled to the mini safe area where they learnt that no one else could enter the compound. On July 13th1995 [Claimant 8] became separated from her husband after which time she never saw him again. 2.45.9. During the war Claimant [Claimant 9] lived together with her husband and two sons in the town of Srebrenica. One of her sons fled when war broke out. He has survived the war. During the fall of Srebrenica [Claimant 9] and her other son [son of Claimant 9] fled to the mini safe area. [son of Claimant 9] was allowed to enter the compound, though she herself and her husband were not. On July 12th 1995 her son [son of Claimant 9] was carried off from the compound. To this day he has not been found. On July 13th 1995 [Claimant 9] became separated from her husband. His mortal remains were found in 2004. 2.45.10. In 1993 Claimant [Claimant 10] moved to the town of Srebrenica together with her parents. On July 11th 1995 her father fled into the woods. His body was later found in a mass grave. [Claimant 10] fled with her mother and sister to the mini safe area where they were not allowed into the compound. They sought refuge in the part of the mini safe area that lay outside the compound. The Bosnian Serbs raped [Claimant 10]’s mother and she died in 1996. 2.46. The Stichting [= Foundation] is a legal person under Dutch law with full legal capacity whose object in sum is to promote the interests of approximately 6,000 surviving relatives of the victims of the fall of Srebrenica. 3The dispute 3.1. Claimants demand – in sum – a Court Order enforceable with immediate effect as follows: I. To obtain a declaratory judgment that vis-à-vis [Claimant 1] et al and the persons whose interests the Stichting promotes the State has fallen short of fulfilling the obligations with which it is charged II. To obtain a declaratory judgment that vis-à-vis [Claimant 1] et al and the persons the Stichting promotes the State has acted unlawfully III. To obtain a declaratory judgment that the State has infringed its obligation to prevent genocide as laid out in the Convention on the Prevention and Punishment of the Crime of Genocide of December 9th 1948 (hereinafter to be referred to as: the Genocide Convention) IV. To uphold a judgment against the State to compensate [Claimant 1] et al for the loss they have suffered for the State to make amends and to make settlement as the law provides V. To rule that the State pay [Claimant 1] et al an advance payment on said compensation to the tune of €25,000 per Claimant VI. To rule that the State pay all of the legal costs of these proceedings. 3.2. In sum Claimants base their case on the fact that the State: i. Is culpable of having fallen short of implementing the obligation placed upon it to protect the populace in the mini safe area Under National and International humanitarian law including the European Convention on Human Rights (hereinafter to be referred to as: ECHR) the International Covenant on Civil and Political Rights (hereinafter to be referred to as: ICCPR), the Geneva Conventions, the UN Charter, the SOP and the mandate) acted against Claimants unlawfully and furthermore Violated their obligation to prevent genocide. 3.2.1 Claimants reproach the State for the following reasons: i. During the period prior to the fall of Srebrenica Dutchbat did too little to ensure delivery of convoys with food and humanitarian assistance reached the people in the safe area. In the period prior to the fall of Srebrenica Dutchbat did to little to deter the advance of the Bosnian Serbs and to protect the people in the safe area against this in particular that Dutchbat:
10. a)Did not use the knowledge it had about the intended attack by the Bosnian Serbs
11. b)Stuck to the demilitarisation agreements and refused to give back confiscated weapons when the Bosnian Serbs were approaching the town of Srebrenica
12. c)Prevented active resistance by the ABiH
13. d)Abandoned observation posts
14. e)Abandoned blocking positions too easily and too readily. The State first blocked close air support to Dutchbat and then brought it to a halt The State rejected the French offer of July 10th 1995 to put at its disposal Tigre helicopters with personnel and after the fall of Srebrenica frustrated plans to retake Srebrenica After the fall of Srebrenica Dutchbat acted contrary to the order of Gobilliard not to abandon right away the observation posts it still ran Dutchbat acted contrary to the order of Gobilliard not to hand over weapons and other equipment to the Bosnian Serbs Dutchbat advised the male refugees to flee into the woods Dutchbat did not raise the general alarm when the male refugees fled into the woods Dutchbat did not allow all of the refugees to enter the compound Dutchbat did not report the war crimes it had observed Dutchbat did not provide the refugees with adequate medical care Dutchbat cooperated in separating the male refugees from the other refugees during the evacuation Dutchbat cooperated in the evacuation of refugees housed at the compound. 3.2.2. Claimants argue they can appeal directly on the grounds of the violation of standards contained in legal ground 3.2. under
15. ii)and iii) and that the accusations concerning conduct referred to under 3.2.1 are related to the State and can be attributed accordingly. 3.2.3. [Claimant 1] et al who lost their homes and many members of their family after the fall of Srebrenica argue that the State is liable for the loss that they suffered as a result. 3.3. The State puts up a reasoned defence averring that the agreement under which the populace in the safe area may derive rights to contradict and to dispute the conduct to which Claimants’ accusations are related may be attributed to it. Alternatively should they decide to appeal directly to this the State disputes Claimants’ argument that a violation of standards occurred. 4The judgment Intent 4.1. The judgment begins in Part 1 with a number of general considerations and follows in Part II with the judgment of Claimants’ demands where these are based on failure attributable to the State. In Part III the District Court discusses the claims based on the State acting unlawfully due to violation of international and/or national law. In addition we deal with the demands Claimants have made based on violation of the Genocide Convention. In Part III under 1 the District Court handles the question as to whether the conduct to which Claimants’ accusations refer may be attributed to the State. The District Court answers the question affirmatively as regards a number of instances concerning conduct and under 2 goes on to examine the lawfulness of said instances. Part IV of the judgment contains the conclusion. We have added a table of contents for this chapter that takes the form of an appendix to the judgment. I General considerations 4.2. The District Court handles in succession (
16. i)the scope of the dispute, (
17. ii)the District Court’s use of reports about the fall of Srebrenica, witness statements and other court judgments, (iii) a number of questions relating to terminology and (
18. iv)Claimants’ arguments as to the course of action the State adopted. (
19. i)The scope of the dispute 4.3. In this case the first question for discussion is whether the UN enjoys immunity. The District Court answered this question affirmatively in its interim judgment of July 10th 2008 and declared it was not competent to take cognizance of the claim against the UN. This judgment was confirmed right up to the court of last resort in The Netherlands. Claimants then submitted a complaint to the European Court of Human Rights (hereinafter referred to as: ECHR) that on June 11th 2013 declared their complaint to be without merit. 4.4. Since the District Court is not competent to take cognizance of the claim against the UN it only remains to assess the claim against the State. The District Court is not going to assess the substance of Claimants’ accusations against the UN. For these reasons therefore representation of the facts and the dispute is limited to the case against the State. 4.5. Claimants hold the State responsible for the fall of Srebrenica and the consequences this brought with it. Besides the arguments reproduced in 3.2 they also formulate arguments about the decision-making process that led to the participation of The Netherlands in the UN mission and about the preparations for the mission especially the training and equipping of Dutchbat and what in Claimant’s eyes was insufficient intelligence gathering. According to Claimants these arguments do not contain any substantive accusation but “this is about the State not being able to advance the circumstances as being in any way exculpatory since Claimants can show after all that preparations and the equipping of Dutchbat were an integral part of the State’s responsibility and that the State acted irresponsibly in that regard or at least took the wrong decisions.” In accordance with Claimants’ intentions the District Court is not going to handle as being in any way substantive the accusation concerning the decision-making process and/or the preparations for the mission. 4.6. Jointly laying the accusations against the State is the Stichting that is asking for a declaratory judgment. We do not dispute that the Stichting is a legal person under Section 3:305a of Burgerlijk Wetboek (BW) [= Dutch Civil Code] authorised to bring just such an action though not an action for damages. 4.7. Given the fact that from Claimants’ arguments it follows that said declaratory judgment is requested with a view to a claim for damages by one or more persons representing the Stichting in subsequent proceedings the District Court understands the declaratory judgment applied for concerning the unlawful actions of the State as relating to qualifying said actions as unlawful acts in the sense applicable under international and/or national law. That then means in order to allow the action all of the criteria for an unlawful act must be met. (
20. ii)The District Court’s use of reports about the fall of Srebrenica, witness statements and other court judgments 4.8. Both Claimants and the State base their arguments on the reports of (
21. i)the Secretary-General of the UN (Report of the Secretary-General pursuant to General Assembly resolution 53/35, The fall of Srebrenica of November 15th 1999), (
22. ii)the NIOD [= Dutch Institute for War, Holocaust and Genocide Studies], (iii) the French Parliamentary committee of inquiry (Rapport d’information commune sur les événements de Srebrenica of November 22nd 2001), and (
23. iv)the Dutch Parliamentary committee of inquiry and the statements made in the context of the Dutch Parliamentary committee of inquiry and the provisional examination of witnesses in the cases of Nuhanović and Mustafić versus the State of The Netherlands (hereinafter to be referred to as: Nuhanović and Mustafić cases). These papers form part of the case file. Parties are not unanimous in endorsing the conclusions drawn in the aforementioned reports. Unless otherwise mentioned below therefore the District Court has not included them when forming its judgment. Following on from Parties the District Court did however, based in part upon the judicial finding of fact from the aforementioned reports and on the statements brought into the case. 4.9. Parties all refer to court judgments in which the fall of Srebrenica was discussed namely the pronouncements of the Yugoslavia Tribunal (International Criminal Tribunal for the former Yugoslavia, hereinafter: ICTY) of August 2nd 2001 (in the first instance) and April 19th 2004 (on appeal) in the Krstić case, the pronouncement of the International Court of Justice (hereinafter to be referred to as: ICJ) of February 26th 2007 in the case between Bosnia-Herzegovina and Serbia and Montenegro and finally the judgments in the Nuhanović and Mustafić cases of the Supreme Court and the Appeals Court at The Hague (namely: HR September 6th 2013, ECLI:NL:HR:2013:BZ9225 and ECLI:NL:HR:2013:BZ9228, and The Hague Appeals Court July 5th 2011, ECL:NL:GHSGR:2011:BR0133 and ECLI:NL:GHSGR:2011:BR0132). The District Court takes into account the established offences and where they are related to the fall of Srebrenica makes the judgments given in these cases its own. Unless otherwise mentioned, the follow-up passages the ICTY quotes in the Krstić case always refer to passages from the judgment in the first instance made on August 2nd 2001 that remained undisputed on appeal and/or were upheld. 4.10. In the cases of Nuhanović who worked as an interpreter employed by the UN and Mustafić who worked as an electrician for Dutchbat, the Supreme Court upheld the judgment of the The Hague Appeals Court (hereinafter: the Appeals Court). That judgment reads as follows: not taking Nuhanović’s family members with them, though he himself was on the list of local personnel that could be evacuated with Dutchbat and arranging for Mustafić who was not on the list and who left the compound with his family, may both be attributed to the State and are unlawful acts. The State emphasises the fact that in these cases only the specific position of Mustafić and the family members of Nuhanović and the acts Dutchbat carried out when the evacuation of the refugees from the compound came to an end when there were hardly any other refugees left … [?]. In these cases the Appeals Court considers that is all it has to assess and not the position of the refugees who had left the compound, the refugees who were immediately outside the compound, or the other refugees who were at the compound. 4.11. Claimants’ accusations regarding Dutchbat’s entire mission and its actions in relation to the Muslim population in the safe area. Besides this the case is specifically about the family members of [Claimant 1] et al. The body of facts in this case is more wide-ranging than in the Nuhanović and Mustafić cases. Moreover it is not limited to the actions of Dutchbat but also relates to the actions of the government of The Netherlands e.g. in relation to the decision-making process surrounding the provision of close air support to Dutchbat. This does not alter the fact that the judgments given in these two cases are of significance to the current case, as this takes place in the same context as the fall of Srebrenica. 4.12. The District Court adopts the same starting point as Parties namely that after the fall of Srebrenica genocide did take place. The IGH and the ICTY have ruled that there is genocide in the sense in which that is understood in the Genocide Convention. In the Krstić case the Appeals Chamber of the ICTY deliberated as follows: “By seeking to eliminate a part of the Bosnian Muslims, the Bosnian Serb forces committed genocide. They targeted for the extinction the forty thousand Bosnian Muslims living in Srebrenica, a group that was emblematic of the Bosnian Muslims in general. They stripped all the male Muslim prisoners, military and civilian, elderly and young, of their personal belongings and identification, and deliberately and methodically killed them solely on the basis of their identification.” (Legal ground No 37). 4.13. The State sticks to its position emphasising the fact that the fall of Srebrenica and the many dead is a matter of regret and constitutes a “black page” in the history of Europe and that the international community did not succeed in preventing this drama from playing out. Moreover the State points out that it was the Bosnian Serbs who were responsible for committing the genocide. The District Court notes that nevertheless in this regard if unlawful acts did take place that are attributable to the State it may be held liable. (iii) A number of questions relating to terminology 4.14. The District Court adopts the same position as Parties using the term ‘refugee’ to indicate the members of the Muslim population who found themselves in the safe area and who left it around the time when the fall of Srebrenica took place on July 11th 1995. In doing so the District Court makes no judgment as to whether they are refugees in the sense in which that is understood by the Geneva Convention on Refugees. 4.15. ‘ War crimes’ is a term the District Court uses in just the same way as Parties where Claimants accuse Dutchbat of not reporting the crimes they had observed. Here too the District Court makes no judgment as to the legal qualification of any such crimes. 4.16. The gathering of facts described how the enclave of Srebrenica and the establishment of a safe area came about. The District Court always refers to ‘the safe area’ as indicating the town of Srebrenica and its environs that formed the safe area as indicated in the mandate. The town the District Court denotes is always ‘the town of Srebrenica’. ‘The fall of Srebrenica’ refers specifically to the fall of the town of Srebrenica on July 11th 1995 that heralded the end of the UN mission. ‘The mini safe area’ is aimed at the compound and the nearby area where from July 11th up to and including July 13th refugees were staying. The District Court uses ‘Potočari’ for the area around the mini safe area where the houses were located to which the Bosnian Serbs brought the male refugees who they had selected from the mini safe area. (
24. iv)The State’s adopted course of action during the proceedings 4.17. Claimants argue that the State’s adopted course of action during the proceedings was “improper” and “from a legal, humane and moral point of view unacceptable”. In their view this has led to the legal proceedings having a lack of equilibrium that must be restored. More specifically they accuse the State of “enlightened self-interest” in earlier on in these proceedings arguing for immunity from prosecution for the UN and withholding documents. 4.18. Earlier on in these proceedings the Appeals Court judged that the State had a reasonable interest in explaining its position before the Court at which the case against the UN was pending and to defend its opinion that said Court would have to declare it was not competent to take cognizance of the case. What the State did may be held against it but to do so does not guarantee success. 4.19. Claimants accuse the State of withholding the following papers from them namely: the Rules of Engagement, their accompanying explanation, the records of talks concerning what was discussed around the time of the fall of Srebrenica in the bunker of the Defensie Crisisbeheersingscentrum (hereinafter to be referred to as: DCBC) [= Defence Crisis Control Centre] and Dutchbat’s debriefing reports. Claimants argue that by not bringing said documents into the case the State has failed to comply with the instruction contained in Section 21 of the Wetboek van Burgerlijke Rechtsvordering (Rv) [= Dutch Code of Criminal Procedure]. 4.20. Under the Wet Openbaarheid van Bestuur (hereinafter: WOB) [= Government Information (Public Access) Act] Claimants have petitioned the Minister of Defence to publish the Rules of Engagement of the UN and their explanation, UNPROFOR’s SOP and the Force Commander Directives from UNPROFOR’s Commander in Chief. Claimants have mounted a legal challenge to the refusal of the Minister of Defence to publish these papers and this has been upheld right up to the court of last resort. From the judgment of the Administrative Disputes Division of the Council of State of March 3rd 2010 it appears that it was deliberated upon in sum that the Minister of Defence must respect the judgment of the UN about these documents and the High Contracting Parties at the Convention on the Privileges and Immunities of the UN. The UN has made provision to the effect that these documents are to remain confidential and are thus not intended for publication (ECLI:NL:RVS:2010:BL6245). This judgment is an obstacle to Claimants’ conclusion that the State wrongly failed to bring into the case the Rules of Engagement and their accompanying explanation. 4.21. It does not appear that under the WOB Claimants have sought to take cognizance of the other papers they mention in 4:19. Nor does it appear that they have availed themselves of the already existing options in civil law to be empowered to dispose over copies of these papers or to take cognizance of their substance. Claimants could have taken cognizance of part of said papers as described in the NIOD Report. Moreover in this action the State has appealed exclusively to sources that are in the public domain. Accordingly against this background the District Court sees insufficient basis in general as Claimants argue but the State disputes that when assessing the points of dispute the criteria set for the State’s obligation to furnish facts should be less strong and/or where the State has met the obligation to furnish facts it should be charged with the burden of proof even if it does not bear the burden of proof according to Section 150 Rv or to regard Claimant’s position as being proven for the time being. The District Court assesses Claimants’ arguments on their own merits based on the established facts and after reviewing Parties’ positions about this in relation to applicable law. II Attributable failure 4.22. Claimants argue that failure to meet its obligations to them to protect the populace in the safe area is attributable to the State. According to Claimants said obligations arise from the agreement between the State and the UN to put at its disposal troops to protect the populace in the safe area and this is to be deemed as a third-party clause in the sense of Section 6:253 BW. They argue that the populace accepted this clause thereby becoming a party to said agreement. 4.23. Since during the plea Claimants made it known that they wish to limit the basis for the judgment of the claim to this agreement the District Court does not take into account other papers in the proceedings relating to other agreements. 4.24. Apparently Claimants are focussing on the offer referred to under 2.14 that came from the government of The Netherlands for a battalion of the Airmobile Brigade for implementation of UN resolutions especially Resolution 836 that the Secretary-General accepted on October 21st 1993. In the cases of Nuhanović and Mustafić the Appeals Court already decided that in this general course of events an agreement was concluded that cannot reasonably be understood other than as Parties intending the Dutch battalion should function under the command structure of the UN and so for the implementation of the peace-keeping operation would be placed under the final authority of the United Nations Security Council. 4.25. Since the agreement between the State and the UN was concluded prior to the EU Treaty concerning the law applicable to contractual obligations June 19th 1980, Trb. [= Treaty Series] 1980 No 156 (hereinafter to be referred to as: EVO) [= Convention on the Law Applicable to Contractual Obligations] was changed into Regulation (EC) No 593/2008 of June 17th 2008 on the law applicable to contractual obligations, PbEU 2008 L177 (‘Rome I Regulation’) applicable law must be decided based on EVO. 4.26. Where no choice of laws is made under Section 4 EVO the agreement is governed by the law of The Netherlands since it is The Netherlands that has the distinctive characteristic of putting its troops at the disposal of the UN and there is nothing to show that the agreement is more closely connected to any other country not even Bosnia-Herzegovina whither Dutchbat was sent. 4.27. Other than Claimants argue concerning the agreement whereby the State put troops at the disposal of the UN for the purpose of implementing Resolution 836 there was no right for the populace in the safe area to demand protection from the State or to appeal in any other way to the State agreement as referred to in Section 6:253 BW. It is also not feasible that the State together with the UN has agreed a third-party clause to the benefit of the Claimants as this would be at odds with an international law argument attributing liability for actions of troops in the context of UN missions. After all Claimants’ appeal to the agreement between the State and the UN with the third-party clause for which they argue in fact comes down to directly forcing the State to observe Resolution 836 and implies that the populace of a country or a place under a UN resolution where the UN acts with the help of military forces claims to observation of the resolution can be made at all times against a sending state supplying the military forces for the implementation of the resolution. 4.28. The foregoing leads to rejection under 3.1 under I of the declaratory judgment and the claims under 3.1 under IV and under V to pay damages and an advance payment on the part of [Claimant 1] et al where these are based on an attributable failure on the part of the State. III Unlawful acts due to violation of international and/or national law 4.29. That means in order to allow the action under 3.1 under II the declaratory judgment applied for declaring that the State has acted unlawfully the following are required

(1)that the acts to which Claimants’ accusations relate may be attributed to the State and

(2)that according to applicable international and/or national law all of the additional criteria for an unlawful act are met. 1Attributing the unlawful acts of which it is accused to the State 4.30. Since this dispute relates to a UN peacekeeping operation for which purpose the State sent troops the question arises as to whether in as much as they took place under the flag of the UN the unlawful acts of which it is accused may indeed be attributed to the State. Together with parties the District Court is of the opinion that first and foremost this question must be answered according to the norms of international public law. 4.31. In doing so the District Court distinguishes as between (A) Dutchbat’s acts (B) other acts related to Claimants’ accusations for example the decision-making process surrounding the provision of close air support [= CAS] to Dutchbat. Under (C) the conclusion on the acts attributable to the State. (A) Attributing Dutchbat’s actions to the State 4.32. The District Court handles seriatim the following points: (

1. a)The attribution criterion: effective control (
2. b)Transfer of command and control over Dutchbat to the UN (
3. c)Effective control of Dutchbat’s actions in general (
4. d)Claimants’ additional arguments about attributing Dutchbat’s actions in the period prior to the fall of Srebrenica (
5. e)The conclusion as to the effective control of the State over Dutchbat’s actions in the period prior to the fall of Srebrenica (
6. f)Effective control by the State over Dutchbat’s actions after the fall of Srebrenica (
7. g)Effective control by the State over Dutchbat’s specific actions after the fall of Srebrenica and (
8. h)The conclusion as to the State’s effective control over Dutchbat’s actions after the fall of Srebrenica. (
9. a)The attribution criterion: effective control 4.33. In the Nuhanović and Mustafić cases the Supreme Court ruled that the criterion for attributing Dutchbat’s actions to the State is whether the State exercised effective control over said actions. The Supreme Court derives this criterion from Section 7 of the Draft Articles on Responsibility of International Organisations (hereinafter to be referred to as: DARIO) that the International Law Organisation (ILO) has drawn up. In the cases referred to the Appeals Court considered that though this provision of effective control is only mentioned in relation to attribution to the UN the same criterion holds when answering the question whether actions of troops must be attributed to the state that placed them at the disposal of others. The Supreme Court considered that the ILO’s DARIO recommendations and the Draft Articles on Responsibility of States for Internationally Wrongful Acts (hereinafter to be referred to as: DARS) may generally be accepted as a reflection of current, unwritten international law and were apparently accepted as such even in 1995. 4.34. Effective control means the actual say or ‘factual control’ of the State over Dutchbat’s specific actions. Whether or not this is a point of discussion must be assessed in terms of the circumstances surrounding the case. When doing so it should be remembered that under Clause 48 DARIO the same act and/or acts might be attributed to both the State and the UN under what is called ‘dual attribution’. 4.35. Other than Claimants argue the way in which the UN enjoys immunity is not relevant. International law of custom offers no support for Claimants’ position that given immunity the “broadest possible” measures of attribution for Dutchbat’s actions must be applied, as otherwise Dutchbat would be placed “above the law”. The opinion of the Supreme Court in the judgment referred to under 1.1 that according to current international law the absence of an alternative judicial process is not prejudicial to the immunity of the UN (confirmed by the ECHR see: 4.3) underlines the fact that the UN’s immunity is not patient of the formulation of an argument that Dutchbat’s actions beyond the framework of current international law are attributable to the State. (
10. b)Transfer of command and control over Dutchbat to the UN 4.36. Since the dispute is related to a UN peacekeeping operation to implement a UN mandate when attributing Dutchbat’s actions to the State it is important to know what powers the State still had and what powers it had transferred to the UN. This is why it merits discussion as to whether and if so to what extent the State had handed over command and control of Dutchbat to the UN. 4.37. Just like the State the District Court is of the opinion that the State did hand over command and control of Dutchbat to the UN. This was not recorded in any written agreement as frequently does occur in a so-called ‘transfer of authority’. Nor is that necessary since in order for the transfer of command and control to take place no procedural requirements have to be observed. After the agreement referred to under 2.14 in which the State put troops at the disposal of the UN Dutchbat was indeed placed under UN orders and operated as a contingent of UNPROFOR. 4.38. The transfer of command and control over Dutchbat took place for the purpose of a UN peacekeeping operation based on Chapter VII of the UN Charter to implement the mandate (see 2.12). The Security Council is solely responsible for implementing international peace and security and is primarily responsible for implementing the mandate. The command and control the State transferred to the UN is inter alia cited and described in the Operations order of December 14th 1994 that aims at Dutchbat III replacing Dutchbat II. The substance of said order is inter alia as follows: “

(2)Upon arrival in YU [District Court’s addition: Yugoslavia] Dutchbat is oob [NAVO: operational control

(1)(opcon)] of UNPROFOR”. In footnote

(1)at Operational control we read as follows: “OPCON. The authority delegated to direct forces assigned to the commander limited by function, time or location; to deploy units concerned, and to retain or assign tactical control of these 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. [Dutch: onder operationeel bevel (oob)]” [under operational orders]. Voorhoeve worded this as follows: “When The Netherlands puts its troops at the disposal of an international organisation in the form of a peacekeeping operation it transfers operational orders over its troops to that organisation or coalition of countries. In this case therefore Dutch troops were placed under United Nations’ orders and their own commanders Lieutenant Colonel Karremans and the other commanding officers of Dutchbat reported to the North-East Sector of Unprofor in Tuzla and in Sarajevo. (…) The next successive level is General Janvier in Zagreb and on the civilian side Mr Akashi the special representative of the United Nations.” (Proceedings TK 1994/95, p. 5987). 4.

1. In part in the light of the above the District Court regards as insufficient Claimants’ argument that transfer of command and control over Dutchbat to the UN was due only to a lack of knowledge. 4.
2. It has now been established that the State attached no conditions to the transfer of command and control over Dutchbat to the UN. Given the substance of the operation order the primary responsibility of the Security Council for the operational implementation of the mandate and what is usual in peacekeeping operations that the UN carries out included in the command and control the State transferred to the UN the say over Dutchbat’s operational implementation of the mandate. In this regard the UN chain of command at UNPROFOR directed Dutchbat in this giving orders and instructions to the commander of Dutchbat. During implementation of the UN mission therefore the State had no formal competence vis-à-vis Dutchbat’s operational implementation of the mandate and was thus not competent to exercise its say about Dutchbat whether via the Dutch officers in the UN chain of command or directly. 4.
3. After transferring command and control states supplying troops at all times retain the right to withdraw them and to cease taking part in the operation (‘full command’). As usual during a transfer of command and control over the operational implementation of the mandate to the UN the State retained further say about personal matters of the military personnel put at the disposal of the UN who remained in service of the State and Dutchbat’s material logistics. The State also retained the authority to punish said military personnel by disciplining them and subjecting them to criminal law. Finally the State had a say over the preparations for the mission e.g. in selecting and training the troops. Nor is any of this disputed as between parties. 4.
4. Transfer of command and control over Dutchbat’s operational implementation of the mandate was a normal situation in which a state puts its troops at the disposal of others during a peacekeeping operation working under the orders of the UN and that is described in a report of the Secretary-General of the UN of 1994 as follows: “In general, United Nations command is not a full command and closer in meaning to the generally recognized concept of “operational command”. It involves the full authority to issue operational directives within the limits of

(1)a specific mandate of the Security Council;

(2)an agreed period of time, with the stipulation that an earlier withdrawal requires adequate prior notification; and

(3)a specific geographical range (the mission area as a whole).” (UN Doc. A/49/681 of November 21st 1994, paragraph 6). 4.43. The situation as described in the above held in any case till the fall of Srebrenica. (

1. c)Effective control of Dutchbat’s actions in general by the State 4.44. Claimants formulate a number of general positions that according to them lead to all of Dutchbat’s actions that form part of the accusations being attributed to the State. Based in part on these positions the District Court fills in the details about the criterion for effective control over said actions on the part of Dutchbat. 4.45. Given the option of dual attribution available we do not need to examine whether the UN also had effective control over Dutchbat’s actions that form part of the accusations. 4.46. First and foremost the District Court hereby pronounces that in order to accept effective control there would be no requirement for the State in giving instructions to Dutchbat to have broken the structure of the chain of command at the UN or exercised independent operational authority to give orders. It comes down to the actual say over specific actions whereby all of the actual circumstances and the particular context of the case must be examined. In the Nuhanović and Mustafić cases the Appeals Court considered that there not only is the question significant as to whether the actions constituted implementation of a specific instruction the State had given but also whether in the absence of any such specific instruction the State had it in its powers to prevent the actions concerned. These considerations remained undisputed on cassation. 4.47. Referring to a quotation from the Claimants argue that the Dutch Government itself found that it did exercise effective control over Dutchbat despite transferring command and control and that for that reason alone there is room for attributing all of Dutchbat’s actions to the State. The quotation concerned is as follows: “The Minister of Defence, Voorhoeve, adopted the following position vis-à-vis NIOD namely that the regulation surrounding Command and Control in The Netherlands and the question as to where everyone’s responsibility lay was more or less clear but that in practice it did not appear to be possible to separate these kinds of matters meaning they got mixed up together. According to him in a strict international law sense it was possible to argue that once The Netherlands had put units at the disposal of the UN the only right it still had was to withdraw its units but that everything else was up to the UN. The Hague would say about this: these military personnel are now UN blue helmets so this is no longer our problem. In practice however things were not like that, argued Voorhoeve.” (NIOD, p. 2283). 4.48. The substance of this quotation provides insufficient grounds for Claimants’ conclusion. It fits into the previously sketched framework for attribution in which transfer of command and control over the operational implementation of the mandate to the UN is not decisive and leaves open the possibility that the State exercises effective control over Dutchbat’s actions. 4.49. As summarised above in 2.18 there were within UNPROFOR Dutch officers appointed to various high levels of command. Claimants argue that this “Dutch line” within UNPROFOR maintained close links with “The Hague” (read: the Dutch Government hereinafter also referred to as: The Hague) crossing the UN’s command and control meaning The Hague exercised continuous influence by passing formal lines and responsibilities. 4.50. The State correctly points out that the mere fact that Dutch military personnel were appointed to UNPROFOR does not mean per se that the State exercised effective control. Dutch officers worked in the UN chain of command whence operational implementation of the mandate was directed. It is usual for military personnel from countries that supply troops form part of the UN chain of command for UN peacekeeping operations. 4.51. Even the fact that Dutch UNPROFOR officers as and when necessary had direct contact with Dutchbat and in doing so missed a link or two in the UN chain of command is not per se accompanied by effective control of the State. Such direct contact was according to statements Nicolai made to the Parliamentary committee of inquiry prompted by the practical wish to discuss questions directly (PE hearings [= PCI interviews], p. 259). This contact did take place inter alia during the discussion about abandoning the observation posts between Nicolai and Karremans prior to issuing the Post Airstrike Guidance that we will discuss below and that took place within the UN chain of command. 4.52. Nor does the fact that Dutch officers in the UN chain of command maintained contact with The Hague constitute grounds for assuming effective control. Claimants argue that the influence of The Hague expressed itself inter alia in frequent requests for information. The State correctly points out that requests for information by the Dutch Government do not constitute exercise of effective control. In addition Nicolai’s sigh that Claimants advanced contained in the NIOD Report namely, “I phoned The Hague at one point and was pissed off when the people in The Hague started asking where the forward Air Controllers were. You can’t get more crazy than them wanting to know that in The Hague.” (p. 2626) the District Court understands this as apparently detailed requests for information. Other than Claimants argue these requests do not per se demonstrate any control being exercised by the Dutch Government over Dutch officers and/or Dutchbat during operational implementation of the mandate. Given the responsibility that the State had even after the transfer of command and control over the operational implementation of the mandate vis-à-vis Dutchbat (see: 4.41) contact between the Dutch Government and the Dutch officers at UNPROFOR would seem obvious. 4.53. A further general point is that communications between Dutch UNPROFOR officers and the Dutch Government is not accompanied by effective control unless in that regard we can talk of there having been orders or instructions to said Dutch officers or some other form of operational guidance by the State. 4.54. The fact has become established that in the period leading up to the fall of Srebrenica contact between The Hague on the one hand and the Dutch UNPROFOR officers and Dutchbat on the other hand was intensified, though on its own this would not constitute effective control. Claimants argue with reference to page 2276 of the NIOD Report that the DCBC in this period concerned itself more with operational matters. On this page under the heading “verhoudingen tussen DCBC en KL Crisisstaf” [= “relations between DCBC and KL Crisis Staff] the relations between these two units are described inter alia as follows: “As matters in Srebrenica became more and more tense under the political pressure of the moment DCBC began to get more and more involved with implementation of the operation and the dividing line between DCBC’s tasks and those of KL Crisis Staff became vague.” That DCBC in relation to KL Crisis Staff “concerned” itself more with operational matters again does not result in effective control; even leaving aside the fact that this concern can consist of heightened interest and need for information here above all as the State has sufficiently explained we are dealing with the relationship and division of tasks between two organisational units within The Netherlands. 4.55. Claimants further argue that in conflict with express orders of the UN there was “an invariable line of conduct” at Dutchbat to allow its own interest to prevail. This is why according to them it has become established that Dutchbat’s actions are the result of effective control being exercised by the State “since military personnel hardly ever act on their own initiative”. Quite apart from the question whether the latter remark is true or is true in all circumstances these generalisations on the part of Claimants provide insufficient basis to be able to conclude that such actions were always preceded by instructions from the State. 4.56. With their arguments about Dutchbat’s actions being in conflict with the orders the UN gave and their argument that the State may not appeal to inter alia inadequate training and preparation of Dutchbat in order to excuse itself for the accusations made against it Claimants do indeed lay a basis for attributing Dutchbat’s actions to the State namely Dutchbat acting ultra vires over and against UN instructions. As to this the District Court deliberates as follows. 4.57. If a military force’s command and control over operational implementation of the mandate is transferred to the UN and said military force then goes on to act beyond the authority given it by the UN or on its own initiative acts against the instructions of the UN as Claimants point out said military force acts ultra vires [= beyond its legal power or authority]. Such action is attributable to the State supplying the troops because the State has a say over the mechanisms underlying said ultra vires actions, selection, training and the preparations for the mission of the troops placed at the disposal of the UN. Moreover the State supplying the troops has it in its powers to take measures to counter ultra vires actions on the part of its troops given the fact that it has a say about personal matters and disciplinary punishments. 4.58. In order to attribute ultra vires actions to the State supplying the troops there is no requirement for said state to give any instruction or order relating to ultra vires action or that this specifically influences the case in some other way. What is decisive is that the State delivering the troops retains the powers it has after transfer of command and control to the UN as well as the relevant say in respect of and with it effective control over self-willed powers acting beyond the powers the UN has granted or against the instructions of the UN concerning the actions of troops put at the UN’s disposal. In this regard the District Court points to the explanation of the ILO at Clause 7 DARIO in which inter alia the following is recorded: “Practice relating to peacekeeping forces is particularly significant in the present context because of the control that the contributing State retains over disciplinary and criminal matters. This may have consequences with regard to attribution of conduct. (…) Attribution of conduct to the contributing State is clearly linked with the retention of some powers by that State over its national contingent and thus on the control that the State possesses in the relevant respect.” (See under 7, p. 21). 4.59. That the UN is of the opinion that this kind of ultra vires action on the part of troops placed at its disposal must exclusively be attributed to it unless “gross negligence or wilful misconduct” occurs (see UN Doc A 50/995 of July 9th 1996 and UN Doc A 46/185 of 23 May 1991) alters nothing as far as the aforesaid is concerned. The fact of the matter is that this opinion of the UB is not decisive for attributing the actions of troops in the framework of peacekeeping operations according to the relevant valid norms. 4.60. We do not need to discuss whether ultra vires actions on the part of troops may be attributed (dual attribution) to both the sending state and the UN or that it is only appropriate to attribute such actions to the sending state as is argued in the literature. (
2. d)Claimants’ additional arguments about attributing Dutchbat’s actions in the period prior to the fall of Srebrenica 4.61. Based on Claimants’ arguments the District Court now discusses whether there are grounds to attribute to the State certain actions by Dutchbat due to Voorhoeve’s instruction to Dutchbat to avoid unnecessary casualties (
3. i)or due to ultra vires actions on Dutchbat’s part (ii). (
4. i)Attribution due to Voorhoeve’s instruction to avoid unnecessary casualties 4.62. Claimants cite Voorhoeve’s pronouncements on July 10th 1995 in the television programme NOVA: “During the coming weeks we have to give the highest priority to the safety of the Dutch military personnel. This is why the commanders are charged in the first place with avoiding casualties. I want to see all of those men and women come back home in one piece. (…) For this reason during the past few days we telephoned all the commanders and spoke with them. We do not wish to take any risks with Dutch personnel or defend any indefensible positions. Be wise and bring all of our boys and girls back home in one piece.” According to Claimants this quotation shows that the State did give Dutchbat instructions and that said instructions were given in any case as of July 8th 1995, as Voorhoeve speaks of “the last few days”. 4.63. The District Court establishes that no earlier than July 9th 1995 from The Hague via the UN chain of command the instruction was issued to Dutchbat to avoid unnecessary casualties. As to this the District Court deliberates as follows. 4.64. The decision to take up blocking positions was taken on July 9th 1995 in Zagreb and was passed on that day to Dutchbat and to the Dutch Government. To the Parliamentary committee of inquiry Voorhoeve stated as follows: “Whilst we were discussing the blocking positions I expressed the hope that the commanders would take such measures as to ensure as few casualties as possible would fall.” (PE hearings, p. 625). In his letter to the Parliamentary committee of inquiry in answer to questions about blocking positions Van den Breemen writes as follows: “The Minister too had considerable doubts and worries but agreed with me. In the end the commanders have to decide with the note in the margin to the effect that the political wish remained intact namely that unnecessary casualties must be avoided. If I remember correctly this was then briefly communicated to the UN. In the afternoon Nicolai phoned me to report an update of the latest state of affairs. I cannot remember precisely what I said in any case nothing important such as don’t lose your bottle and all the best and don’t forget: no unnecessary casualties.” (PE hearings, p. 735). To the Parliamentary committee of inquiry in answer to the question if he too was told to cause no casualties when given instructions about the blocking positions Franken replied as follows: “in the evening I was informed that there was a message from the Minister of Defence Voorhoeve that contained the wish that no Dutch dead and wounded should fall. (…) Lieutenant Colonel Karremans informed me of this.” (PE hearings, p. 67, the latter in answer to the question who communicated this to whom). 4.65. From the above it appears that from The Hague via the UN line of command the instruction was given to Dutchbat that when taking up the blocking positions as decided on July 9th 1995 no unnecessary casualties should be caused. There is no point of departure to be able to assess whether the instruction was given any earlier than July 9th 1995 or that it had any broader import than actions at the blocking positions or that it had some other, namely “greener” – i.e. more military character and was more risky than the “blue” actions in the context of the peacekeeping operation – as far as concerns the implementation of the mandate. 4.66. Just like Claimants the District Court is of the opinion that this instruction from Voorhoeve demonstrates the exercise of effective control by the State over the actions of Dutchbat. After all the State interfered in an operational matter for which moreover UNPROFOR had given a specific order and this was after the State had transferred command and control over the operational implementation of the mandate by Dutchbat to the UN and the say over this operational matter was reserved to the UN. This is not altered by the fact that the instruction matches up with the immediately preceding general instruction of the UN expressed in the Post Airstrike Guidance of May 29th 1995, “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.” (See 2.20). What is decisive here is that the State in giving Dutchbat this instruction interfered with the management of the operational implementation of the mandate by Dutchbat that it had already transferred to the UN. (
5. ii)Attribution due to ultra vires actions of Dutchbat 4.67. Now we have arrived at the point at which we can discuss the argument Claimants advanced namely of ultra vires acts on the part of Dutchbat in respect of the mandate

(1)and when abandoning the observation posts

(2).

(1)Ultra vires acts in respect of the mandate 4.

1. Claimants argue that by making insufficient effort to protect the populace of the safe area Dutchbat acted contrary to the mandate. The State correctly points out that the resolutions and the mandate ascribe powers to Dutchbat. During operational implementation of the mandate Dutchbat acted under command and control of UNPROFOR. If it did act independently and beyond the powers given in the mandate the District Court is of the opinion that ultra vires acts on the part of Dutchbat may be attributed to the State. 4.
2. Claimants’ position that Dutchbat made insufficient effort to protect the populace in the safe area however is not related to independently exceeding the powers given in the operational implementation of the mandate by Dutchbat and thus to ultra vires acts under command and control of the UN. There are no grounds for attributing to the State Dutchbat’s acts for implementation of and within the framework of the mandate.

(2)Ultra vires acts when abandoning the observation posts 4.70. Claimants argue Dutchbat abandoned observation posts whilst none of the criteria listed for abandoning said posts under 9b of the Post Airstrike Guidance of May 29th 1995 were met. According to Claimants only isolated positions in areas taken by Bosnian Serbs were allowed to be abandoned when lives were at risk or there were dead to be mourned over. 4.71. Referring to the NIOD Report Claimants note that contrary to the standing order to set light to everything when forced to abandon an observation post Dutchbat did not set light to observation post OP-E (p. 2005). The District Court leaves this remark without discussion in the light of the fact that it bears no relation to the heart of Claimants’ accusation namely that Dutchbat abandoned the observation posts without offering any resistance and in doing so failed to provide Srebrenica with sufficient defence. 4.72. Post Airstrike Guidance was given to Dutchbat in the following context. On May 25th and 26th 1995 airstrikes were carried out on targets in the vicinity of the Bosnian-Serb Government centre in Pale. After this the Bosnian Serbs captured hundreds of UNPROFOR military personnel to use as hostages to prevent further airstrikes from taking place. On May 28th 1995 the Bosnian Serbs captured two of Britbat’s observation posts taking some tens of British military personnel hostage resulting in Britbat withdrawing to its compound. That evening Nicolai had given Karremans the order to abandon a number of observation posts. Karremans disagreed with this. Then in discussions between Nicolai and Karremans awaiting further instructions from Smith expected the following morning a compromise was reached whereby preparations would be made where necessary to abandon the observation posts within one hour. The observation posts would be maintained till further orders were received or till severe danger threatened with Nicolai giving the instruction that no unnecessary risks should be taken. In the night of 28th and 29th May 1995 Dutchbat was given the instruction about the preparations for abandoning the observation posts and implemented it. The further instructions from Smith came in the form of the Post Airstrike Guidance of May 29th 1995 (NIOD, pp.1991 to 1996). 4.73. The instruction Claimants cite concerning the abandoning of the observation posts under 9b of the Post Airstrike Guidance should be viewed neither as being separate from the context we gave above nor as being separate from the rest of the Post Airstrike Guidance. This begins with the report of the Serbian reaction at the end of May 1995 to the close air support [= CAS] given and the UN instruction namely: “(…) that the execution of the mandate is secondary to the security of UN personnel. The intention is to avoid loss of life defending positions for their own sake and unnecessary vulnerability to hostage taking.” Then the Post Airstrike Guidance mentions targets for UNPROFOR actions in the coming period inter alia: “ “Using force if necessary including CAS and Air Strikes as a last resort (…) Maintaining as best as we can our position as Peacekeepers endeavouring to fulfil our mandate.” Then follows the more specific instruction that Claimants cite: “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 Commander’s discretion when they are threatened and in his judgement life or lives have or will be lost. (…)” 4.74. Claimants’ position therefore that observation posts were abandoned “without offering any resistance” is not compatible with the facts. Observation post OP-E was abandoned after the Bosnian Serbs had surrounded it, Dutchbatters had heard explosions and a volley of fire and the Bosnian Serbs warning them by megaphone to leave it forthwith. When the garrison left the observation post in a YPR, an armed vehicle, the Bosnian Serbs fired at them. Observation post OP-F was abandoned after it had come under fire from VRS tanks shooting at the ABiH and was then seized by the Bosnian Serbs who were clearly making preparations to attack said observation post. Other observation posts too were continually being abandoned after being surrounded or coming under fire from the Bosnian Serbs. That held too for observation post OP-M that during the days prior to its being abandoned was fired at on July 9th 1995. Shortly before the garrison at observation post OP-M left that day incoming fire from the VRS came ever closer till a shell destroyed the gate to the observation post. Right after Dutchtbat had left the observation post it received a direct hit and came under fire from a heavy calibre machinegun (NIOD, p. 2258). 4.75. Quite apart from the discrepancy between facts and arguments without further explanation we would be unable to see that Dutchbat by abandoning the observation posts in the given circumstances acted contrary to the instruction under 9b of the Post Airstrike Guidance especially if in doing so we take into account the context and the additional substance of the Post Airstrike Guidance. 4.76. The above would not be other if Dutchbat could perhaps have chosen to offer more resistance to the Bosnian Serbs by for example shooting at them. Claimants’ references to the Rules of Engagement and other UN instructions may be of no avail to them in this regard. These instructions grant powers to use force and regulate the use of such powers but do not oblige its use in any way. That an instruction could have been carried out in some other way does not mean without further ado that actions have been carried out contrary to the instruction. That holds also for the possibility that others would have acted differently – as Claimants suggest in Janvier’s explanation to the French Parliamentary committee of inquiry when he was talking in general terms about Dutchbat’s actions in this regard where inter alia he said: “si nous avions eu 400 Français à Srebrenica, cela aurait été totalement diffèrent car nous nous serions battus.” [“if we had had 400 Frenchmen at Srebrenica it would have been totally different because we would have hit back”] (Report of the French Parliamentary committee of inquiry, Part 2, p. 123). 4.77. The conclusion reads that there was no question of Dutchbat acting ultra vires by abandoning observation posts prior to the fall of Srebrenica – that may not therefore be attributed to the State. 4.78. Given the fact that Dutchbat’s actions in this matter as we explained earlier have already been attributed to the State on the grounds of Voorhoeve’s instruction we may leave without discussion here whether Dutchbat could be said to have acted ultra vires when abandoning the blocking positions as Claimants argue. (

1. e)Conclusion as to effective control of the State over Dutchbat’s actions prior to the fall of Srebrenica 4.79. From the above it follows that given the lack of effective control the State had with the exception of actions surrounding the blocking positions Dutchbat’s actions prior to the fall of Srebrenica are not attributable to the State. This concerns the following:
2. i)Claimants’ accusation that Dutchbat did too little to arrange for convoys with food and humanitarian help reaching the safe area
3. ii)Claimants’ accusation that Dutchbat did too little to block the advance of the Bosnian Serbs and to protect the populace in the safe area from this especially by:
4. a)Not using the knowledge it had about the intended attack by the Bosnian Serbs
5. b)Sticking to the demilitarisation agreements and refusing to give back confiscated weapons when the Bosnian Serbs were approaching the town of Srebrenica
6. c)Preventing active resistance by the ABiH
7. d)Abandoning observation posts. These accusations remain without further discussion. We discuss later whether Dutchbat’s actions in connection with the blocking positions were lawful or unlawful. (
8. f)Effective control by the State over Dutchbat’s actions after the fall of Srebrenica 4.80. The previously normal situation in which a state puts its troops to work at the disposal of and under the orders of the UN during a peacekeeping operation changed substantially when Srebrenica fell at the end of the afternoon of July 11th 1995. After that a period of transition was entered into in which the State had a say in the actions of Dutchbat when providing humanitarian assistance to and preparing the evacuation of the refugees from the mini safe area. As to this the District Court deliberates as follows. 4.81. In the morning of July 11th1995 when the Bosnian Serbs approached the town of Srebrenica the situation was discussed within the DCBC. Those present included inter alia Voorhoeve, Van Baal and Van den Breemen. After that Van Baal and Van den Breemen travelled to Sarajevo to speak with Janvier. They had received the instruction from Voorhoeve to conduct the talk with Janvier in the context of the meeting held that same morning. Van Baal had stated before the Parliamentary committee of inquiry the following: “We agreed amongst ourselves that we would stick to the position that the implementation of the task should be directed towards protecting the populace and that we should do so for as long as possible in addition taking into account that fighting at that point was not or was hardly worthwhile. Allowing casualties to fall unnecessarily would then no longer be a point of discussion. The third point was that we had to take into account that we could find ourselves in a situation in which Dutchbat would have to evacuate along with the populace to MKF territory [District Court’s addition: Muslim Croat Federation]. Those were the conclusions of the meeting that we took to general Janvier in Zagreb. That is the basis on which we conducted talks with him.” (PE hearings, p. 344). 4.82. In the meantime when Van Baal and Van den Breemen arrived in Sarajevo Srebrenica had fallen and the mission to protect the safe area had failed. The talks that Van Baal and Van den Breemen conducted that evening with Janvier were about the situation that had come about after the fall of Srebrenica. In Van Baal’s own words in his statement about the talks with Janvier to the Parliamentary committee of inquiry: “The accent then shifted in fact from UNPROFOR’s military operation to the problem of the refugees.” and: “We said: Dutchbat and the populace will evacuate together or after each other. That was agreed as such with General Janvier. (…)” (PE hearings, pp. 344 to 345). 4.83. In the cases of Nuhanović and Mustafić the Appeals Court decided that what was discussed between Janvier, Van den Breemen and Van Baal could not be understood in any other way than that the UN in the person of Janvier and the Government of The Netherlands in the person of Van den Breemen and Van Baal decided in mutual consultation that in the new situation in which Srebrenica had fallen and the UN mission had in fact failed Dutchbat should direct its efforts towards its humanitarian task and the preparations for the evacuation of Dutchbat and the refugees from the mini safe area. In doing so the Government of The Netherlands took part in this decision-making process at the highest level. This decision was accompanied by a transitional period in which matters in Potočari were settled. 4.84. Taking as its starting point Van Baal’s statement during the preliminary witness hearings in the Nuhanović and Mustafić cases the District Court fixes the time when the transitional period became operative at about 11 pm on July 11th 1995: “Later that day I went to Zagreb shortly after noon. I arrived there sometime in the afternoon. Talks with General Janvier began about one hour after we had arrived. The talks took place with a number of interruptions and went on till late in the evening our last contact being after ten o’clock.” 4.85. Dutchbat’s withdrawal was prepared during the transitional period and the State had independent powers to withdraw it (see 4.41). With the joint decision with the UN not to evacuate Dutchbat any earlier than at the same time as the refugees or after the refugees the State tied implementation of these powers to the provision of humanitarian assistance to preparations for the evacuation of the refugees in the mini safe area during the transitional period. This too was discussed in contacts between Voorhoeve and Nicolai on July 11th 1995. Nicolai made the following statement about this to the Parliamentary committee of inquiry: “After I had informed the Minister about the fact that the airstrikes had been brought to an end he asked me whether I knew of Dutchbat’s extraction plan. I answered: “Yes” (…) I informed him that after lengthy consultations that in fact lasted only briefly we saw no other solution in Sarajevo than to evacuate the populace who were completely unprotected and present there under wretched circumstances; we had no means of doing anything about it. From the point of view of security or guaranteeing security of the refugees we saw no other option than to include in the evacuation Dutchbat and any other UN means required since we did not wish to leave it to the Serbs. He agreed with this at once.” (PE hearings, p. 271). About this Voorhoeve stated: “(…) The second consideration that was discussed directly and prominently – Mr Nicolai emphasised this – was that the blue helmets were needed to care for the refugees. We agreed about this at once. (…).” (PE hearings, p. 626). 4.86. After this talk Nicolai phoned Karremans instructing him to arrange for the evacuation of the refugees at and around the compound. About this Nicolai stated: “I had already said earlier on that I phoned Karremans immediately after my talk with Minister Voorhoeve and gave him the instruction to raise with the Serbs the arrangements for the evacuation of the refugees (…)” (PE hearings, pp. 272 to 273). During his first talks with Mladić Karremans informed him that he was also acting on behalf of the Government of The Netherlands. 4.87. The foregoing facts and circumstances lead the District Court to conclude that during the transitional period the State did have effective control over providing humanitarian assistance to and preparation of Dutchbat’s evacuation of the refugees in the mini safe area. This action therefore on the part of Dutchbat may be attributed to the State. Such effective control was limited to this and did not spread to Dutchbat’s involvement with the stream of refugees that prior to commencement of the transitional period moved during the course of the afternoon from the town of Srebrenica to the mini safe area. Such effective control was also not related to refugees outside the mini safe area or to Dutchbat’s actions outside the mini safe area e.g. the abandonment of observation posts after the fall of Srebrenica. 4.88. Such effective control by the State over Dutchbat’s actions during the transitional period continued until Dutchbat withdrew on July 21st1995 after the refugees had been evacuated from the mini safe area. Resolution 1004 (see 2.42) did not lead to any other actual situation during the transitional period: the Bosnian Serbs did not give heed to the call it contained to discontinue their offensive and to withdraw from the safe area forthwith. Nor did it appear that said resolution led to any order to Dutchbat to take positions in and around Srebrenica or in any other way to attempt to retake Srebrenica by military intervention. 4.89. For this reason too if and inasmuch as Dutchbat acted contrary to Gobilliard’s order (see: 2.37) this ultra vires action must be attributed to the State. 4.90. The District Court considers that inasmuch as it was related to the refugees Gobilliard’s order was limited to those refugees in the mini safe area that Dutchbat had demarcated and where the refugees were staying when the order was given. On July 11th 1995 Karremans had informed the Bosnian Serbs that he regarded the compound and the surroundings as a safe area (NIOD, p. 2,604). In this actual situation with due regard for the text of Gobilliard’s order in which the task of protecting the refugees “in your care” follows on immediately after that of withdrawal of Dutchbat in Potočari we are unable to understand the order as reasonably relating to anything other than just the refugees in the mini safe area. (
9. g)attributing specific actions of Dutchbat to the State after the fall of Srebrenica 4.91. Based on what has been deliberated upon in the above Claimants’ following accusations against the State fall within the scope of the State’s effective control over Dutchbat’s actions during the interim period: (
10. i)Not reporting war crimes (
11. ii)Not providing the refugees with adequate medical care (iii) Handing in weapons and other equipment during the evacuation of the refugees (
12. iv)Maintaining the decision not to allow refugees into the compound that as will become clear was taken and implemented prior to the commencement of the transitional period and prior to Gobilliard’s order (
13. v)Separating the men from the other refugees during the evacuation (
14. vi)Cooperating in the evacuation of refugees who had sought their refuge in the compound. 4.92. Claimants argue that as the State had effective control over Dutchbat not reporting war crimes under the Geneva Conventions oblige us to attribute this to the State but we may leave this without discussion here. 4.93. The following accusations concerning Dutchbat’s actions lie beyond the scope determined in 4.87 of said effective control of the State over Dutchbat’s provision of humanitarian assistance to and preparations for the evacuation of the refugees during the transitional period: (
15. i)Not abandoning observation posts after the fall of Srebrenica (
16. ii)Handing over weapons and other equipment to the Bosnian Serbs (iii) Dutchbat allegedly advising the male refugees to flee into the woods (
17. iv)Failing to sound the general alarm when the men fled to the woods (
18. v)Not allowing all of the refugees into the compound. This is to do with Dutchbat’s actions in respect of refugees beyond the mini safe area (under (
19. i)up to and including (
20. iv)and/or – as established below – Dutchbat’s actions prior to the commencement of the transitional period (under (iii) up to and including (v)). The District Court will now proceed to examine whether the State in some other way had effective control over one or more of said actions on the part of Dutchbat and that for that reason may be attributed to the State even at this late stage. (
21. i)Not abandoning observation posts immediately after the fall of Srebrenica 4.94. After the fall of Srebrenica Dutchbat abandoned the last observation posts namely on July 12th 1995 observation posts OP-C, OP-N, OP-P, OP-Q, OP-R and on July 15th 1995 observation post OP-A. Claimants argue that in doing so Dutchbat acted ultra vires since this was contrary to Gobilliard’s order “Concentrate your forces into the Potocari Camp, including withdrawal of your Ops. Take all reasonable measures to protect refugees and civilians in your care.” 4.95. It does not appear that Gobilliard’s order that Karremans received by fax was passed on within Dutchbat to the garrison at the observation posts who therefore did not act upon said order. Dutchbat did not immediately and under pressure of the Bosnian Serbs abandon the observation posts. In doing so vis-à-vis this order it did act ultra vires. Not leaving the observation posts immediately after the fall of Srebrenica is thus attributable to the State. (
22. ii)Ultra vires actions due to giving up weapons and other equipment 4.96. Claimants argue that Dutchbat’s laying down and handing over of weapons on July 11th 1995 at the blocking positions “is only the more incomprehensible” when we take into account Gobilliard’s order as follows: “Giving up any weapons and military equipment is not authorised and is not a point of discussion.” Claimants then go on to point to the total number of weapons missing as referred to on page 2,250 of the NIOD Report i.e. 199 rifles, 25 UZIs, 38 pistols, 18 individual .30 machine guns and 11 individual .50 machine guns. The District Court understands Claimants’ position thus that from the point at which Gobilliard had ordered them not to do so they accuse Dutchbat and with it the State of having handed over weapons and other equipment to the Bosnian Serbs. 4.97. It has now been established that in the transitional period during the evacuation of the refugees in the mini safe area Dutchbat acting on the orders of the Bosnian Serbs handed over weapons and other equipment as well as vehicles that they were using to accompany the buses filled with refugees. Dutchbat also handed over weapons and other equipment when surrendering the last blocking position. In conclusion we have now established that the garrisons at the observation posts were doing this too even after the fall of Srebrenica. 4.98. Gobilliard’s order did not allow for the “surrender” of weapons and other equipment under any circumstances whatsoever. This is why the actions reported under 4.97 are to be categorised as being ultra vires actions on the part of Dutchbat in respect of Gobilliard’s order and attributable to the State on those grounds. (iii) The alleged advice to the male refugees to flee into the woods 4.99. As regards the flight of the men into the woods Claimants go on to refer to page 2480 of the NIOD Report and point 61 of the judgment of the ICTY in the Krstić case. The reference to the NIOD Report concerns the chapter “The journey from Srebrenica to Tuzla”, this has to do with a group of men and members of the 28th Division of the ABiH who travelled from Srebrenica to Tuzla. On July 11th 1995 these men gathered during the course of the day in Susnjari and in the night of July 11th to 12th 1995 left in the direction of Tuzla. In the Krstić case the statement records the following (in legal ground 60): “As the situation in Potočari escalated towards crisis on the evening of 11 July 1995 word spread through the Bosnian Muslim community that the able-bodied men should take to the woods and form a column together with the members of the 28th Division of the ABiH and attempt a breakthrough towards Bosnian Muslim-held territory in the north.” 4.100. The State adduces that the men had themselves decided to flee to the woods and refer to the UN Report that states as follows: “ The majority of Srebrenica’s men of military age did not seek refuge in Potočari. The vast majority of them, including the civilian and military authorities, as well as some of their families, decided instead that they would risk making their way on foot to Tuzla, some 50 km away, through Serb lines and through forested, partly mined territory. They decided that they would fight their way through if they had to. By mid-afternoon, the men who were preparing to make the journey began to gather in the hamlet of Susnjari, located in the north-western portion of the enclave.” (No. 310). 4.101. We have established that around the time of the fall of Srebrenica approximately 10,000 to 15,000 men from the safe area fled to the woods in the vicinity of the town of Srebrenica. A large number of them about 6,000 according to the ICTY (Krstić legal ground 83) fell into Bosnian Serb hands after which they were no longer seen alive. Claimants argue that this flight took place on the advice of Dutchbat and that Dutchbat that knew the men were in danger on July 11th 1995 should have sounded the general alarm and taken action. The State disputes whether any such advice was ever given. 4.102. In what follows the District Court acts on the assumption that Dutchbat did give the alleged advice and thus refers to it hereinafter as ‘the advice’. 4.103. The advice is discussed inter alia in [Claimant 5]’s statement as follows: “When you enter Srebrenica you arrive at a crossroads close to a petrol station; one street leads to Potočari, the other street in the direction of the woods. Dutchbatters at the time used hand signals to indicate that the men had to go to the woods.” Given the location of the crossroads just outside the town of Srebrenica this statement evidently relates to the start of the refugees’ journey to Potočari. Even if [Claimant 5] had been in the rear of the stream of refugees the point at which she arrived at the crossroads must have been at the commencement of the transitional period. The District Court hereby takes into account that the town was empty when Srebrenica fell at about 4.30 pm. 4.104. [Claimant 2] who arrived at the mini safe area on July 11th 1995 at 23:00 hours made the following statement about the advice: “I then saw a lorry with old people and Dutch soldiers. Said lorry stood at a fork in the road between Potočari and Srebrenica. I saw how Dutchbatters used hand signals to indicate the men had to go into the woods.” If this statement relates to the same location as that about which [Claimant 5] had made her statement what we deliberated on under 4.101 holds equally for the advice she refers to. If that is not so given the time when [Claimant 2] arrived in the mini safe area this advice could equally have been given prior to the commencement of the transitional period. We are unable however to exclude the fact that the advice dates from Gobilliard’s order. Since that order bore no relation to the refugees beyond the mini safe area there is no place for attribution due to ultra vires actions vis-à-vis this order. 4.105. From the written witness statements of [Claimant 1], [Claimant 4], and [Claimant 10] in which the advice was also mentioned whilst there is no evidence of where the advice was given we do know that the male refugees were urged to go to the woods with hand signals and that this advice was disseminated using megaphones and interpreters. In [Claimant 1]’s statement we find that there was a hole in the fence surrounding the compound but that she and her son were not allowed in when they arrived at there. The hole in the fence was closed prior to 16:30 hours (NIOD, p. 2618). According to her statement [Claimant 4] arrived at the mini safe area in the evening at about eight o’clock. There is no evidence that [Claimant 10] who does not mention any time of arrival came any later than the other Claimants who arrived at the mini safe area prior to the commencement of the transitional period. That means in addition that the advice about which [Claimant 1], [Claimant 4], and [Claimant 10] make statements must have taken place prior to the commencement of the transitional period. 4.106. The District Court is of the opinion that neither from the passages just cited nor from the additional arguments of parties and the case papers facts and circumstances appear that could lead to the judgment that the State exercised effective control over the disputed advice to the male refugees to flee into the woods. 4.107. Inasmuch as the disputed advice was given after Gobilliard’s order as previously deliberated upon it still holds that this order has no bearing on these refugees. Even if the advice were to be contrary to this order it would not lead to attribution to the State. We do not therefore need to answer the question whether the advice was ultra vires in respect of this order. 4.108. The above leads the District Court to the conclusion that the advice is not attributable to the State. That means the District Court does not have to get round to examining whether the disputed advice was given and to assess its lawfulness. Since this fits in with the deliberations relating to the lawfulness and/or unlawfulness of the actions that may be attributed to the State below and superfluously the District Court dedicates one of its deliberations to the lawfulness and/or unlawfulness of the stated advice. (
23. iv)Neglecting to sound the general alarm about the flight of the male refugees into the woods 4.109. Claimants argue that on July 11th 1995 Dutchbat could have sounded the general alarm about the flight of the male refugees since they were aware of the real risk these men were running. 4.110. This action of which Dutchbat stands accused is not attributable to the State: it falls beyond the scope of the State’s effective control during the transitional period that relates to Dutchbat providing humanitarian assistance and preparing the evacuation of the refugees from the mini safe area. Gobilliard’s order is not aimed at these refugees who were outside the mini safe area. Moreover there is no evidence that would compel us to accept that the State had effective control over said neglect. 4.111. Here too it still holds that although the District Court does not have to come to a judgment concerning the lawfulness of the actions of which Dutchbat is accused since these are not attributable nevertheless it gives its opinion superfluously and in one of its deliberations in Chapter 2 under B. (
24. v)Not allowing all of the refugees into the compound 4.112. In the early evening of July 10th 1995 during consultations Karremans and Franken decided to allow refugees into the compound at a point at which refugees were expected to come there that same evening. In doing so they decided to tailor the number of refugees they would allow in to the number of people who could fit into the large vehicle hallways on the compound and to allow in refugees through a hole in the fence at the south-west corner of the compound. On the evening of July 10th 1995 the hole was cut into the fence. No refugees arrived at the compound that evening. When during the course of the afternoon of July 11th 1995 the stream of refugees got going refugees were let in to the compound through the hole in the fence made earlier till the vehicle hallways were full. At 16:30 hours at about the same time as the fall of Srebrenica the gates were opened of one of the factory premises close to the compound. At that point the improvised access to the compound had already been closed. (NIOD, p. 2,618). 4.113. From the foregoing it appears that both the decision not to allow all of the refugees into the compound and the actual implementation of this by closing the hole in the fence the vehicle hallways on the compound were full from before the commencement of the transitional period. This means Dutchbat’s actions fall beyond the scope of the effective control of the State over them in the transitional period. 4.114. Gobilliard’s order was given after the decision by Karremans and Franken not to allow all of the refugees into the compound and shortly after its actual implementation. The question then as to whether in doing so Dutchbat acted ultra vires in respect of the order is answered in the negative. Nor is there any evidence of the State’s effective control over this action prior to the transitional period. 4.115. Claimants’ accusation on this point however is regarded as something that should be viewed together with the maintenance of this situation during the transitional period and after Gobilliard’s order. To that extent this accusation does fall within the scope of the State’s effective control over Dutchbat actions in the transitional period. Inasmuch as here we can speak of ultra vires actions in respect of Gobilliard’s order that is aimed at these refugees it is on that basis moreover attributable to the State. (
25. h)Conclusion on effective control of the State over Dutchbat’s actions after the fall of Srebrenica 4.116. From the above it follows we may attribute to the State the following actions of Dutchbat after the fall of Srebrenica: (
26. i)Not leaving the observation posts (
27. ii)Not reporting war crimes (iii) Not providing the refugees with adequate medical care (
28. iv)Handing over weapons and other equipment to the Bosnian Serbs (
29. v)Maintaining the decision not to allow any refugees into the compound (
30. vi)Separating the men from the other refugees during the evacuation (vii) Cooperating in the evacuation of refugees who had sought refuge at the compound. (B) Attributing to the State other actions of which it is accused 4.117. The criterion of effective control holds too for attribution of the other actions of which the State is accused that relate to the decision-making process within the UN and NATO. Here we are talking about the State exercising decisive influence over the supposed unlawful acts of these international organisations. To be able to establish whether said influence did exist we would have to assess all of the actual circumstances and the special context of the case. 4.118. The District Court discusses whether the State did have effective control over (
31. a)the absence of close air support (
32. b)stopping close air support (
33. c)the failure of French helicopters to appear and thwarting plans for the recapture of Srebrenica. (
34. a)The absence of close air support [= CAS] 4.119. Claimants accuse the State primarily of thwarting and calling off at the last minute the deployment of the air force in the period from July 6th up to and including July 11th 1995 alternatively not managing the deployment thereof in this period. According to Claimants the State exercised effective control over this. In essence the matter comes down to this: Claimants arguments boil down to the decisions within the UN chain of command about close air support being prompted by the State’s overpowering wish to guarantee Dutchbat’s security including that of about 30 Dutchbatters taken hostage by the Bosnian Serbs, though according to Claimants they had gone along with the Bosnian Serbs voluntarily and for that reason to avoid every risk. According to Claimants the State had discontinued or had others discontinue various requests for close air support for which there was operational necessity. The State disputes it had effective control over deployment of the air force. 4.120. The District Court notes that Claimants’ primary arguments relate to obstructing the deployment of close air support, the air force for direct support of UN troops on the ground and not of air strikes, an air attack with a destructive character. In what follows only the air force in the form of close air support forms part of the discussion. 4.121. When answering the question whether the State had effective control over the deployment of the air force the District Court argues first and foremost that the State had no formal powers that were in any way connected with the deployment of the air force. The procedure for requesting close air support, called Blue Sword, is the sum of two parts: approval by the UN and approval by NATO. 4.122. According to the UN procedure the battalion commandant goes through the sector headquarters UNPROFOR in Sarajevo to request close air support (for Dutchbat: Sector North East in Tuzla). The Close Air Support Committee consisting of the most important officers and civil officials then assesses the request after which UNPROFOR commandant sends it through to UNPF headquarters in Zagreb. In Zagreb the Crisis Action Team under leadership of the Chief of Staff Kolsteren then considers the request and submits it for signature to the Force Commander Janvier who in turn requests permission from the Special Representative for Bosnia-Herzegovina Akashi. All officials weigh up the request based on a checklist of fixed criteria. 4.123. NATO approval for a request for CAS went as follows. For the purposes of communication with the UN peacekeeping force in the former Yugoslavia NATO liaison officers were present at their headquarters in Sarajevo and Zagreb. In Sarajevo there was an Air Operations Coordination Center (AOCC) for contact with Combined Air Operations Center (CAOC) NATO air force in Vicenza. In Zagreb there was a liaison cell for contact with Vicenza and besides this there was a NATO officer present for contact with the headquarters of the Commander-in-Chief Allied Forces Southern Europe (CINCSOUTH) in Naples the American Admiral Leighton Smith. Though AOCC in Sarajevo had no formal powers it was important in providing information about the specific circumstances under which air strikes had to be carried out. Through the prior warning it gave to NATO decisions could be prepared there and airplanes be made ready. It was nevertheless CINCSOUTH that had to give permission for close air support. 4.124. We have been able to establish that during the period from July 6th up to and including July 11th 1995 within the UN chain of command nine requests for close air support were formulated. Of these nine two requests were allowed. 4.125. Claimants argue it was always the Dutch General Nicolai who rejected or postponed the requests. Assuming Nicolai did postpone the requests this would not in and of itself mean there was any effective control of the State over the deployment of the air force. To do that we would have to establish that the State had decisive influence over the decision-making process regarding close air support. According to Claimants as of July 8th 1995 this was the case. 4.126. Firstly Claimants point to the meeting that took place in the evening of July 8th 1995 in the presence of Nicolai at Bosnia Herzegovina Command in Sarajevo where the options regarding the provision of CAS to Dutchbat were discussed. Nicolai then decided not to submit any ‘pre approved’ request for CAS in case the Bosnian Serbs decided to further press their attack but in the morning of July 9th 1995 to deploy air presence. The request was not submitted. According to Claimants this course of action on the part of Nicolai can be explained by the fact that Voorhoeve had at that moment already phoned with an instruction from the State that precedence had to be given to the safety of Dutch military personnel. Claimants point to the TV interview that Voorhoeve gave to NOVA on July 10th 1995 cited earlier and argue here that the instruction was apparently given as of July 8th 1995. 4.127. We established earlier that on July 9th 1995 from The Hague through the UN chain of command the instruction was given not to cause any unnecessary casualties. We earlier assessed this instruction as only relating to the blocking posi