Rechtbank Den Haag, eerste aanleg - meervoudig civiel recht overig

with registered office at Amsterdam,

claimants,

advocates M.R. Gerritsen LL.M., Dr A. Hagendorn LL.M., J. Staab LL.M. and S.A. van der Sluijs LL.M., at Amsterdam

versus

established at The Hague,

Respondent,

advocates G.J.H. Houtzagers LL.M. and K. Teuben LL.M. at The Hague,

2. the organisation possessing legal personage

THE UNITED NATIONS,

established at New York, United States of America,

Respondent,

not appearing.

Claimants are jointly referred to as ‘Claimants’, Claimants under 1 up to and including 10 together as ‘[Claimant 1] et al’ and Claimants under 11 as ‘de Stichting’ [= the Foundation]. Respondents are referred to as ‘the State’ and ‘the UN’.

4.145. Claimants argue that unlawful acts on the part of Dutchbat took place under both national and international law. The District Court now examines whether that is the case. We discuss seriatim the applicable law and the assessment framework (A) and the unlawfulness of the accusations attributable to the State as summarised earlier (B). There follows under (C) the conclusion regarding the claims based on an unlawful act and the claim specifically tailored to the supposed violation of the Genocide Convention.

(A) Applicable law and assessment framework

4.146. The District Court first handles the applicability of the provisions of international law to which Claimants appeal and the assessment framework it provides (i). The District Court then deals seriatim with the national law that according to Dutch international private law applies to the claim under the heading unlawful act (ii) and into the substance of these standards governing unlawful acts (iii).

4.147. Claimants adopt the position that the State has violated international law in the following ways:

The State disputes that Claimants may derive rights from the provisions or legal principles to which they appeal directly.

4.148. Under Section 93 of the Grondwet (Gw) [= Constitution] provisions of treaties and decisions of international law organisations may be legally binding on all as to their substance with legally binding powers coming into effect after they are published. For a provision of a treaty or a decision of an international law organisation to become qualified as ‘binding on all’ it must be eligible for immediate applicability in cases submitted to a court of law. It must be a provision that is sufficiently precise as to the right it confers or the obligation it imposes on subjects so that in the national system of laws they can operate without question as objective law. On other forms of international law namely those whose provisions in the form of treaties and international decisions are not binding on all as well as the totality of the international law of custom whether or not characterised by ius cogens Section 93 Gw does not apply. Said right remains in effect within the system of laws of The Netherlands by means of application of national law for example through the law governing the unlawful act.

4.149. Whilst UNPROFOR’s mandate is indeed regarded as a decision by an international law organisation it only has a powers-creating character and does not call to life any obligations Claimants can enforce at a court of law for UNPROFOR i.e. Dutchbat.

4.150. The District Court now handles the applicability of the human rights treaties ECHR and ICCPR (a) and after that the applicability of other standards of international law including the obligation to prevent genocide (b).

4.152. In Article 2 paragraph 1 ECHR and Article 6 paragraph 1 ICCPR the right to life is established as a fundamental human right in Article 3 ECHR and Article 7 ICCPR incorporates the prohibition of torture and inhuman treatment. From these treaty obligations there arises a positive obligation on the State to protect the right to life and the physical integrity of the person subject to the legal system of the states that are Contracting States.

4.153. Under Article 1 ECHR the Contracting States to the convention all “within their jurisdiction” guarantee the rights and freedoms as enacted in the first title of the Convention. Under Article 2 paragraph 2 ICCPR Contracting States undertake to respect and guarantee convention rights “within its territory and subject to its jurisdiction”. Although the concept of jurisdiction in both conventions is not identical it is accepted that both concepts be interpreted in the same way and parties do not argue otherwise. In respect of both conventions it holds that only in very extreme cases does a state have jurisdiction beyond the borders of its own territory.

4.154. Where of relevance here in the Al-Skeini et al judgment against the United Kingdom (July 7th 2011, no. 55721/07) ECHR gave the following opinion:

“134. First, it is clear that the acts of diplomatic and consular agents, who are present on foreign territory in accordance with provisions of international law, may amount to an exercise of jurisdiction when these agents exert authority and control over others (…).

135. Secondly, the Court has recognised the exercise of extra-territorial jurisdiction by a Contracting State when, through the consent, invitation or acquiescence of the Government of that territory, it exercises all or some of the public powers normally to be exercised by that Government (…). Thus where, in accordance with custom, treaty or other agreement, authorities of the Contracting State carry out executive or judicial functions on the territory of another State, the Contracting State may be responsible for breaches of the Convention thereby incurred, as long as the acts in question are attributable to it rather than to the territorial State (…).

136. In addition, the Court's case law demonstrates that, in certain circumstances, the use of force by a State's agent operating outside its territory may bring the individual thereby brought under the control of the State's authorities into the State's Article 1 jurisdiction. This principle has been applied where an individual is taken into the custody of State agents abroad. (…) The Court does not consider that jurisdiction in the above cases arose solely from the control exercised by the Contracting State over the buildings, aircraft or ship in which the individuals were held. What is decisive in such cases is the exercise of physical power and control over the person in question.

(…)

138. Another exception to the principle that jurisdiction under Article 1 is limited to a State's own territory occurs when, as a consequence of lawful or unlawful military action, a Contracting State exercises effective control of an area outside that national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control, whether it be exercised directly, through the Contracting State's own armed forces, or through a subordinate local administration (…). Where the fact of such domination over the territory is established, it is not necessary to determine whether the Contracting State exercises detailed control over the policies and actions of the subordinate local administration. The fact that the local administration survives as a result of the Contracting State's military and other support entails that State's responsibility for its policies and actions. (…)

139. It is a question of fact whether a Contracting State exercises effective control over an area outside its own territory. In determining whether effective control exists, the Court will primarily have reference to the strength of the State's military presence in the area (…). Other indicators may also be relevant, such as the extent to which its military, economic and political support for the local subordinate administration provides it with influence and control over the region (…)”

4.155. Referring to this judgment and the SOFA Claimants argue first and foremost that Dutchbat’s actions fall under the jurisdiction of the State since the deployment of military personnel to protect civilians is part of the core tasks of any state Dutchbat was the only military power of any significance in the safe area that had to protect the civilians against the Bosnian Serbs and Dutchbat’s presence was of crucial importance for the existence of the safe area.

4.156. The District Court dismisses this argument that is also regarded as aimed at the mini safe area and the refugees present there. Dutchbat’s deployment did not concern the exercise of “public powers” by the State in the form of “executive or judicial functions” in the safe area that would normally be implemented by the Government of Bosnia-Herzegovina. Prior to the fall of Srebrenica Dutchbat was operating within the command and control structure of the UN as previously explained. SOFA is an agreement between the UN and Bosnia-Herzegovina from which no starting point for the formal authority of the State can be derived.

4.157. Again referring to the Al-Skeini et al judgment against the United Kingdom Claimants further argue that the jurisdiction of the State alongside that of the UN exists because Dutchbat was in fact the only military power in the safe area and as such exercised “effective control” over the safe area. They also argue that the refugees in the mini safe area were under Dutchbat’s supervision. In this position the District Court follows Claimants in part.

4.158. It is important to draw a distinction between the effective control criterion in the context of attributing actions to the State and in the context of the jurisdiction of the State which criterion is applied in both cases according to the circumstances of the case. In this way a state can have effective control over an area without exercising effective control over the specific actions of individuals in that area and vice-versa.

4.159. The District Court considers that there is nothing to show that through Dutchbat the State had “physical power and control” as referred to in the judgment over the populace in the safe area. The same holds for the refugees who after the fall of Srebrenica remained in the mini safe area. In addition the actual situation as described above did not form a proper basis for the conclusion that through Dutchbat the State had “domination” over the safe area. For this it is again relevant that Dutchbat operated within the command and control structure of the UN and that Dutchbat had limited manpower.

4.160. The District Court is of the opinion however that through Dutchbat after the fall of Srebrenica the State had effective control as understood in the Al-Skeini judgment over the compound. The compound was a fenced-off area in which Dutchbat had the say and over which the UN after the fall of Srebrenica exercised almost no actual say any more. In addition we have established the fact that other than the mini safe area the Bosnian Serbs respected this area and left it untroubled after the fall of Srebrenica.

4.161. The foregoing leads the District Court to the conclusion that by means of Dutchbat the State was only able to supervise observance of the human rights anchored in the ECHR and ICCPR vis-à-vis those persons who as of the fall of Srebrenica were in the compound. The State was not able to do this for the populace of the safe area prior to the fall of Srebrenica and even less after that vis-à-vis the refugees in the mini safe area that lay beyond the compound or beyond the mini safe area. This assessment is confirmed in the conclusion of the Supreme Court in its profuse deliberations in the Mustafic and Nuhanovic cases namely that after the fall of Srebrenica the State exercised jurisdiction in the sense in which that is understood by the ECHR and ICCPR at the compound.

4.162. Claimants recognise that in the case of violations of the other standards of international law requested in principle only states can effectuate liability. They point out that in both the literature and legal practice this is experienced as being unsatisfactory and argue that this principle ought to be broken and that individuals too should be able to submit claims against states based on standards of international law. In doing so they point inter alia to Basic Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law that the General Assembly of the UN adopted in Resolution 60/147 of December 16th 2005.

4.163. This argument fails. After all from the preamble of said resolution seventh paragraph it appears expressly that the resolution does not call into existence any new international or national obligations:

“(…) Emphasizing that the Basic Principles and Guidelines contained herein do not entail new international or domestic legal obligations but identify mechanisms, modalities, procedures and methods for the implementation of existing legal obligations under international human rights law and international humanitarian law which are complementary though different as to their norms. (…)”

The substance of the resolution makes the provisions Claimants are invoking not as yet “enforceable”.

4.164. The foregoing implies that Claimants’ declaratory judgment the substance of which is that the State violated its obligation to prevent genocide as in the Genocide Convention is not allowable. After all the obligation to prevent genocide as is evidenced by the text of the Convention and the history of how it came about now holds only between Convention states themselves. We can leave without further discussing whether this obligation is regarded as a ius cogens rule since any such rule is not yet a provision binding on all in the sense of Section 93 Gw and does not create enforceable obligations to which Claimants are legally entitled.

4.165. As previously deliberated upon in the legal system of The Netherlands the international law of custom operates through application of national law. The District Court is of the opinion that this moreover provides for a “mechanism for the implementation of existing legal obligations under international human rights law and international humanitarian law” as wished for in the aforementioned Basic Principles of the Member States.

(ii) Applicable national law

4.166. Just as Claimants the District Court is of the opinion that the unlawfulness according to national law of the actions of which Dutchbat is accused and that are attributable to the State must be assessed according to the law of The Netherlands. As to this it deliberates as follows.

4.167. The State correctly has not denied that unlawful actions of the State as Claimants argue consist of the exercise of public authority i.e. acta jure imperii. Till the current Section 10:159 BW came into force the international private law of The Netherlands contained no codified special rule governing the choice of law for acta jure imperii. Section 10:159 BW stipulates that acta jure imperii should be assessed according to the law of the State that exercised said authority. According to the explanation the basis of said indicative ruling is that:

“the exercise of government authority is pre-eminently an area left to the sovereignty of the State concerned. In doing so foreign law should not be applied to the question whether in exercising authority we can speak of there being unlawful acts and if so to what extent this leads to liability.”

(Note of amendment to the proposed law Enacting and introducing Book 10 on International private law in the Civil Code (Law to enact and introduce Book 10 of the Civil Code) (TK 2009/10, 32137, no. 7).

4.168. In 1995 no legal community-wide rule governing the choice of law existed for law applicable to agreements based on unlawful acts. There did exist however the COVA judgment referred to by the State (HR November 19th 1993, NJ 1994, 622) that formulated a jurisprudential rule governing the choice of law that meant the starting point was the applicable law of the country where the unlawful act had taken place. This rule governing the choice of law was codified in 2001 in the Wet Conflictenrecht Onrechtmatige daad (hereinafter to be referred to as: WCOD) [= Unlawful Act (Conflict of Laws) Act].

4.169. In the Explanatory Memorandum to the WCOD that contains no special rule for acta jure imperii there is inter alia the following:

“The legislative bill only lays down the most important rules of the international unlawful act and in so doing ties in with the COVA judgment referred to.” (TK 1998/99, 26608, no. 3, p. 2.). From this explanation the District Court deduces that not all of the rules of unwritten private law in The Netherlands are codified in the WCOD and this apparently includes the now codified rule governing the choice of law that relates to the very rare situation whereby the State becomes liable for government troops outside The Netherlands.

4.170. The District Court further considers that the acta jure imperii has for decades had a special place in the international private law of The Netherlands when answering the question whether a state enjoys immunity from jurisdiction. In that connection the thought in the explanation to 10:159 BW lies equally at the basis of the starting point namely that in cases of acta jurii imperii it may only be summoned to appear before a court of law on its own territory and beyond that enjoys immunity from jurisdiction.

4.171. The foregoing leads the District Court to the opinion that the law of The Netherlands applies to Claimants’ valid claim concerning the unlawful act. That we are dealing here with actions in the context of a UN mission does not lead to any other opinion given the fact that as earlier deliberated upon it may be attributed to the State. Nor does the fact that Bosnian law was applied to the Nuhanovic and Mustafic cases where likewise there was a valid claim based on an unlawful act having taken place lead to any other opinion. In those cases the applicable law was not in dispute and for that reason did not have to be officially determined.

4.172. Moreover from the deliberations of the Appeals Court in the Nuhanovic and Mustafic cases the District Court deduces that in order to answer the question whether specific actions were unlawful it makes no difference whether the assessment is based on Bosnian law or the law of The Netherlands. Upon being asked at the sitting the State informed the court that any differences between both legal systems would only emerge when settling the amount of immaterial damage.

(iii) Applicable norms for assessing accusations of unlawful acts

4.173. Here we discuss whether Dutchbat’s actions constitute an unlawful act according to the law of The Netherlands (Section 6:162 BW).

4.174. For the State the following valid international norms additionally flesh out the standard of care in Section 6:162 paragraph 2 BW.

4.175. First and foremost the substance of the mandate is relevant since it was Dutchbat’s task by being present and where necessary with deployment of CAS to protect the populace in the safe area against armed attack and other hostile actions on the part of the Bosnian Serbs. This idea of protection should always have been uppermost in the mind of Dutchbat during its acts of commission and/or omission.

4.176. Of relevance too are the underlying universal legal principles enshrined in Articles 2 and 3 ECHR (and 6 and 7 ICCPR). These imply that the military force whose task it was to protect the refugees in the safe area was there to protect the right to life and the integrity of the human person inasmuch as that may reasonably asked of it.

4.177. SOP 208 that Dutchbatters ought to have respected prescribed that all information, including explanations about observed war crimes had to be reported immediately in writing to Bosnia Herzegovina Command. That as the State argues and in the absence of knowledge Claimants dispute the obligation only held for verified crimes is insufficiently explained partly because this criterion does not appear from the only available secondary source in this case namely the NIOD Report. SOP 208 was based on all relevant international conventions, charters and Security Council resolutions relating to human rights and war crimes including the Geneva Conventions (NIOD, p. 2653). SOP 208 was intended to provide a short-term deterrent for combative parties and for the longer term to create the potential for prosecuting those committing war crimes (NIOD, p. 2655).

4.178. As we deliberated upon earlier States parties to the Genocide Convention are obliged to prevent genocide. The State is party to this convention. In the case of Bosnia and Herzegovina versus Serbia and Montenegro the ICJ [= International Court of Justice] devoted various general deliberations to the obligation resting on the State:

“(1) The Obligation to Prevent Genocide

(…)

430. (…) it is clear that the obligation in question is one of conduct and not one of result, in the sense that a State cannot be under an obligation to succeed, whatever the circumstances, in preventing the commission of genocide: the obligation of States parties is rather to employ all means reasonably available to them, so as to prevent genocide so far as possible. A State does not incur responsibility simply because the desired result is not achieved; responsibility is however incurred if the State manifestly failed to take all measures to prevent genocide which were within its power, and which might have contributed to preventing the genocide. In this area the notion of “due diligence”, which calls for an assessment in concreto, is of critical importance. Various parameters operate when assessing whether a State has duly discharged the obligation concerned. The first, which varies greatly from one State to another, is clearly the capacity to influence effectively the action of persons likely to commit, or already committing, genocide. This capacity itself depends, among other things, on the geographical distance of the State concerned from the scene of the events, and on the strength of the political links, as well as links of all other kinds, between the authorities of that State and the main actors in the events. The State’s capacity to influence must also be assessed by legal criteria, since it is clear that every State may only act within the limits permitted by international law; seen thus, a State’s capacity to influence may vary depending on its particular legal position in respect of the situations and persons facing the danger, or the reality, of genocide. On the other hand, it is irrelevant whether the State whose responsibility is in issue claims, or even proves, that even if it had employed all means reasonably at its disposal, they would not have sufficed to prevent the commission of genocide. As well as being generally difficult to prove, this is irrelevant to the breach of the obligation of conduct in question, the more so since the possibility remains that the combined efforts of several States, each complying with its obligation to prevent, might have achieved the result — averting the commission of genocide — which the efforts of only one State were insufficient to produce.

431. (…) In fact, a State’s obligation to prevent, and the corresponding duty to act, arise at the instant that the State learns of, or should normally have learned of, the existence of a serious risk that genocide will be committed. From that moment onwards, if the State has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis), it is under a duty to make such use of these means as the circumstances permit. However, if neither genocide nor any of the other acts listed in Article III of the Convention are ultimately carried out, then a State that omitted to act when it could have done so cannot be held responsible a posteriori, since the event did not happen which, under the rule set out above, must occur for there to be a violation of the obligation to prevent. (…)” (Emphasis provided by the District Court).

4.179. As state and convention party the State must be guided by these standards of international law that partly serve to protect Claimants’ family members and that continue to work through in the standard of care set out in Section 6:162 paragraph 2 BW.

4.180. When implementing the standard of care applicable to Dutchbat’s actions attributable to the State the general measure holds that given what the management knew at that point during the actions of which they are accused could they reasonably have decided and acted in the way in which they did?

4.181. Moreover it is important to know that because the matter had to do with a war situation there is no reason for a cautious assessment of Dutchbat’s actions. In the subsequent judicial determination of actions of a military force all of the relevant facts and circumstances of the case must be taken into account including the fact that here it is a matter of taking decisions under extreme pressure.

4.182. The requirement of a causal link (conditio sine qua non) is present if it can be established with a sufficient degree of certainty that without the unlawful actions the damage would not have occurred. In this case we have therefore to examine whether with a sufficient degree of certainty it may be established that the men from the safe area would not have been killed without the unlawful actions of the State.

4.183. Inasmuch as in doing so the obligation to prevent genocide plays any role the following deliberation of the ICJ in the case of Bosnia-Herzegovina and Serbia and Montenegro is relevant:

“462. The Court cannot however leave it at that. Since it now has a rule on the claim for reparation, it must ascertain whether, and to what extent, the injury asserted by the Applicant is the consequence of wrongful conduct by the Respondent with the consequence that the Respondent should be required to make reparation for it, in accordance with the principle of customary international law (...) The question is whether there is a sufficiently direct and certain causal nexus between the wrongful act, the Respondent's breach of the obligation to prevent genocide, and the injury suffered by the Applicant, consisting of all damage of any type, material or moral, caused by the acts of genocide. Such a nexus could be considered established only if the Court were able to conclude from the case as a whole and with a sufficient degree of certainty that the genocide at Srebrenica would in fact have been averted if the Respondent had acted in compliance with its legal obligations.”

(B) The lawfulness or unlawfulness of Dutchbat’s actions attributed to the State

4.184. The assessment of the lawfulness or unlawfulness of Dutchbat’s actions being attributable to the State is the sum of two parts namely (i) Dutchbat’s actions beyond the mini safe area prior to and after the fall of Srebrenica and (ii) Dutchbat’s actions within the mini safe area after the fall of Srebrenica.

4.185. Here the District Court discusses seriatim Claimants’ accusations in terms of (a) Dutchbat’s actions in relation to the blocking positions (b) not abandoning observation posts after the fall of Srebrenica and (c) handing in weapons and other equipment at the observation posts.

4.186. Claimants accuse Dutchbat of not or of not correctly implementing the formal order it received from Sarajevo on July 9th 1995 at 22:00 hours to take up blocking positions to prevent any further advance by the Bosnian Serbs towards the town of Srebrenica. In this connection Claimants point out that the commander of Dutchbat’s B company Captain Groen interpreted incorrectly the order by instructing his men that only if there were a direct attack could they use self-defence and only then if it was necessary whereby initially they were to fire over the heads of the Bosnian Serbs. According to Claimants in doing so Dutchbat allowed its own safety to prevail over that of the task with which it had been charged namely to protect the populace in the safe area as is also evidenced by Karremans’ statement in response to the current order namely, “that he thought his troops were too good to be sacrificed”. According to Claimants Dutchbat had abandoned the blocking positions too quickly and too easily and at the last blocking position taken had acted contrary to Gobilliard’s order by leaving it unfortified.

4.187. The District Court deliberates as follows. Janvier classed the blocking positions Dutchbat was to take up as being “a line in the sand” (the so-called “horizontal 84”, a line on the map at approximately one-and-a-half kilometres south of the town of Srebrenica). Besides the order of July 9th 1995 to take up the blocking positions a warning was issued to the Bosnian Serbs from the UN chain of command that an attack on the blocking positions Dutchbat had taken up would be regarded as unacceptable and could lead to deployment of CAS. Within Dutchbat Franken explained the order to Groen. In doing so Franken made it known that the order should be regarded as being a “green assignment”. Franken thus confirmed the assignment by fax that B company had to set up a line of defence and had to prevent the Bosnian Serbs from getting through to the town of Srebrenica by all available means. The fax message underlined the fact that this was a “green assignment with serious intent”. In his statement to the Parliamentary committee of inquiry Groen explained his chosen way of implementing the assignment as follows:

“We had the advantage that everyone had grown up with the entire situation and everyone had already been in the area for six months. So everyone knew how the situation had developed and everyone knew that we still had to try and act to de-escalate the situation. If we had opened fire without giving it serious thought we would have risked forfeiting our UN status in the eyes of the adversary even if perhaps we had not thought so ourselves. Then the question is what would this achieve; you run the risk of just being seen as an adversary like the jihadis. For that matter the jihadis had tried constantly to get us onto their side and to give up our impartial status so that we could fight against the Bosnian Serbs together. Naturally we wished to avoid that as we were impartial there and that was precisely why we could act as a human shield between the Bosnian Serb forces and the civilian population which is in my opinion what it was all about.

(…)

We knew we could shoot in self-defence. We did not go there to open fire immediately at the first signs of movement. It remained the case that we had to act to de-escalate to use our common sense to continue to monitor the situation. We were not meant to react to every provocation.

(...)

If we got into a situation in which we ran the risk of actually opening fire there was always an intervening step: shooting over people’s heads. If by doing so we could bring about a situation in which people did not pursue an attack we would have achieved the same goal only this time without casualties and without any further escalation. This is always an intervening step.” (PE hearings, p. 15).

4.188. The NIOD Report reveals the following. On July 10th 1995 Dutchbat had taken up four blocking positions (Bravo 1-4): Bravo-1 was at Stupine to the west of the town of Srebrenica, Bravo-2 and Bravo-4 were on the road from Zeleni Jadar to Srebrenica. Bravo-3 was at observation post OP-H to the east of Srebrenica on the road that leads to Srebrenica from Mt. Kvarac via Crni Guber. Since you could cover the position of Bravo-2 from Bravo-4 in practice Bravo-2 became redundant. On July 10th 1995 Bosnian Serbs shot at Bravo-3 three times. From Bravo-3 Dutchbat shot over the heads of the VRS units. At 19:13 hours Groen gave the order to the garrison at Bravo-1 to withdraw to Srebrenica. After this the garrisons at Bravo-3 and 4 began to withdraw. There from Bravo-1 Dutchbat fired shots over the heads of VRS units. In the night of July 10th to 11th 1995 the garrisons at Bravo-1, 3 and 4 remained in the town of Srebrenica. On the orders of Franken at 10:44 hours the garrison of Bravo-1 moved 500 metres to the south. At 11:17 hours Franken gave the instruction to shoot “at will”. After coming under fire from VRS lorries Bravo-1 received the order to withdraw to the compound at Srebrenica. On July 11th 1995 after CAS had been given that led to heavier attacks from the Bosnian Serbs Groen gave Bravo-1 the order to abandon its position and together with the garrisons from Bravo-3 and 4 to withdraw from Srebrenica in the direction of Potocari. Franken then gave Groen the order to take up a new blocking position close to where the road turns off to go to Susnjari just to the south of the factory complexes at Potocari. This blocking position was abandoned under threat from VRS units and disarmed by Bosnian Serbs.

4.189. At heart Claimants’ accusations target Groen’s choice and instruction to act to de-escalate the situation at the blocking positions and Dutchbat’s actions consequent upon said instruction. The order from Sarajevo relating to the blocking positions that speaks of doing “everything possible” to “fortify these positions including reinforcing them” according to the District Court provides enough room for Groen’s chosen manner of implementing it. Claimants’ sole argument that Groen’s choice was “incomprehensible”, or that Dutchbat could have implemented the order in some other way e.g. by using as Claimants suggest more force does not mean this is contrary to the order. Moreover the District Court is unable to agree with Claimants’ position that Dutchbat gave up the blocking positions too readily. In doing so the District Court also takes into consideration the fact that Dutchbat had insufficient equipment to be able actually to stop the advance of the Bosnian Serbs on the ground. Claimants have not contradicted the fact that Dutchbat with the arms it had was only in a position to shoot at the Bosnian Serb infantry and not at the same time at the artillery and the tanks that formed the greatest threat to Dutchbat and the populace in the safe area. Besides this it is also relevant to take as being established that the Dutchbatters in their blocking positions were facing the overpowering manpower of the Bosnian Serbs and were thus in a severe minority. Nor could Dutchbat be expected to keep on manning the blocking positions when requests for CAS were not being honoured by the UN chain of command and when on July 11th 1995 CAS did indeed arrive it did not have the desired effect but led precisely to an intensification of the Bosnian Serb attacks.

4.190. The Secretary-General of the UN commenting in general about Dutchbat not firing directly at the Bosnian Serbs concluded:

“Had they engaged the attacking Serbs directly it is possible that events would have unfolded differently.” (UN Report, no 472).

He goes on immediately to provide a nuance to this conclusion as follows:

“At the same time, it must be recognized that the 150 fighting men of Dutchbat were lightly armed and in indefensible positions and were faced with 2,000 Serbs advancing with the support of armour and artillery.”

The Secretary-General goes on to conclude:

“Ultimately, it is not possible to say with any certainty that stronger actions by Dutchbat would have saved lives, and it is even possible that such efforts could have done more harm than good.” (No 473).

4.191. The conclusions of the Secretary-General of the UN quoted above and that are not part of any discussion between parties raise the question if a more robust approach on the part of Dutchbat at the blocking positions as Claimants support could be regarded as in any way a ‘better’ alternative than the way in which Dutchbat chose to implement the order. No facts or circumstances have been argued or appear on which basis the question could be answered unequivocally in the affirmative.

4.192. The foregoing leads the District Court to the conclusion that in the light of the facts and circumstances it knew about at the time Dutchbat could reasonably have decided and acted as it did in relation to the blocking positions. On this point then there is no question of any unlawful acts.

4.193. The foregoing applies also to the handing over of the weapons and other equipment when abandoning the last blocking position on July 11th 1995. This happened after VRS troops with whom Dutchbatters were speaking aimed their weapons at the Dutchbatters and made them ready to fire (NIOD, p. 2250). It appears that the Dutchbatters did not have a realistic alternative when under threat of arms they were urged to hand over their weapons and other equipment. That they did so contrary to the orders of Gobilliard is in itself insufficient to qualify their actions vis-à-vis Claimants as unlawful.

4.194. We can leave whether the other criteria for an unlawful act have been met therefore in the middle.

4.195. Claimants accuse Dutchbat that instead of withdrawing to the compound and using there all the means at their disposal to protect the refugees they waited at the observation posts to see what was going to happen.

4.196. This accusation fails to hit its target in respect of observation post OP-A that was abandoned on July 15th 1995 that during the evacuation of the refugees fulfilled a role as a relay station for radio traffic between the battalion staff at the compound on the one hand and Dutchbat vehicles that accompanied the refugee convoys on their way to Kladanj, on the other hand (NIOD, p. 2,255).

4.197. The garrison at the observation posts that were abandoned on July 12th 1995 fell into the hands of the Bosnian Serbs. The Bosnian Serbs dropped the garrison of observation post OP-P off at the gate to the compound on July 12th 1995 at around 22:00 hours (NIOD, p. 2,253). The garrison of observation post OP-C was taken under escort of the Bosnian Serbs to Milici. The Bosnian Serbs brought the garrison of the other observation posts to Bratunac.

4.198. We are unable to exclude the possibility that if all of the observation posts had been abandoned right away none of these Dutchbatters or at least less of them would have fallen into the hands of the Bosnian Serbs. It has neither been argued nor proven however that the evacuation of the refugees from the mini safe area would have taken place in some other way and in particular that men would have escaped death or that Dutchbat would have acted differently if the Dutchbatters who fell into the hands of the Bosnian Serbs had been in the mini safe area during the evacuation of the refugees and the garrison of observation post OP-P had arrived there earlier. The causal link between immediately leaving the observation posts and the loss Claimants suffered is missing too. We can leave without discussion as to whether abandoning the observation posts is an unlawful act.

4.199. We have established that when taking the observation posts on July 12th and 15th 1995 the Bosnian Serbs took weapons and other equipment as spoils of war. The garrison of observation post OP-M laid down their weapons on the ground after they had come outside having been signalled to do so by the Bosnian Serbs who then took whatever they wanted out of the observation post including the YPR stationed there at the time. The garrison of observation post OP-P allowed itself to become disarmed when the post was surrounded by tanks and infantry and Bosnian Serbs who searched the observation post and took with them the YPR. The Bosnian Serbs – who with approximately 25 men had forced their way into observation post OP-Q and surrounded it with one hundred men – when taking the post had seized the weapons and accompanying munitions of the garrison who before that had taken the opportunity to destroy all of the documents, the maps and the mortar’s firing mechanism. Under threat the garrison of observation post OP-R had handed over their weapons to the roughly 20 Bosnian Serbs who had forced their way into this post only to plunder it along with the YPR that was stationed there. The garrison of observation post OP-A had rendered the YPR, the antitank weapon and the mortar unready prior to leaving the observation post and then before meeting the Bosnian Serbs the viewfinder and the thermal viewer that they had brought with them. The Bosnian Serbs took from the Dutchbatters the weapons and the flak jackets (NIOD, p. 2,251 to 2,257).

4.200. ABiH also took weapons and equipment as spoils of war namely from the garrison of observation post OP-C: in the evening of July 11th 1995 before the Bosnian Serbs took this observation post on July 12th 1995 ABiH soldiers under threat of weapons robbed the garrison of various items including their weapons, munitions and back packs. In doing so one Dutchbatter had to hand in his flak jacket after a weapon had been held to his head (NIOD, pp. 2,253 to 2,254).

4.201. It has neither been argued nor proven that Dutchbatters not handing in their weapons and equipment was a realistic option as in a number of cases they had anyway rendered unfit for use weapons and other equipment and were able therewith to preclude others from using them. In the given circumstances therefore the Dutchbatters who had no choice but to comply were able reasonably to decide and act as they did. The single fact that in doing so they acted contrary to Gobilliard’s order renders their actions not unlawful in respect of the Claimants.

(ii) Dutchbat’s actions in the mini safe area during the transitional period

4.202. After a number of general deliberations of importance when assessing Claimants’ specific accusations about Dutchbat’s actions in the mini safe area (1) a discussion of the accusations follows (2).

(1) General deliberations

4.203. Firstly the District Court reflects on the situation in the mini safe area in the transitional period (a) then during the evacuation of the refugees from the mini safe area (b) and the genocide of the men who came from the safe area and the war crimes the Bosnian Serbs committed in Potocari (c). After that the District Court will discuss Dutchbat’s observation of war crimes the Bosnian Serbs committed (d) and what Dutchbat knew or could have suspected about the fate of the male refugees the Bosnian Serbs took away from the mini safe area (e). Finally the District Court will reflect on what Dutchbat knew or could suspect as to the fate of the men who did not flee to the mini safe area but to the woods (f).

4.204. After the fall of Srebrenica a mini safe area was created consisting of Dutchbat’s compound in Potocari and the area in the vicinity to the south of the compound on both sides of a road where inter alia a number of factory hallways and a bus depot were located. There were about 150 Dutchbatters at the compound. The mini safe area was cordoned off with tape. Dutchbat had blocked the approach roads to this area with armed vehicles and had set up perimeter checkpoints at the mini safe area. Approximately 5,000 refugees had been accommodated. The remainder of the refugees were in the part of the mini safe area located beyond the compound.

4.205. After the fall of Srebrenica about 20,000 to 25,000 refugees from there sought refuge at the mini safe area. The District Court agrees with this and with the reiteration of the facts referred to (see 2.35) The total number of refugees matches the number of refugees the ICTY established were in the mini safe area. The precise number of refugees is difficult to establish even according to the NIOD. We are not ruling out then that there were about 30,000 refugees beyond the compound as Claimants assert. That corresponds with the estimate cited from the MSF and the United Nations Military Observers (UNMO) in the NIOD Report (on p. 2620) The District Court’s assessment would not be any different however if we were to take Claimants’ number of refugees referred to as our starting point.

4.206. The majority of the refugees consisted of women, children and elderly people (Krstic legal ground no 37). It remains unclear as to how many men had sought their refuge to the mini safe area. Based on an internally prepared extrapolation by co-workers of the prosecutor at the ICTY for the purpose of the Krstic case NIOD has accepted that probably around 2,000 men were in Potocari of whom three-quarters were of fighting age i.e. 16 to 60 years of age (NIOD Report, p. 2620). The ICTY deliberated that according to witness estimates at least 300 men were at the compound and between 600 and 900 in the rest of the mini safe area (Krstic legal ground no 37) and that the Bosnian Serbs selected and carried off about 1,000 men from the mini safe area (Krstic legal ground no 66). The District Court takes as its starting point the fact that the men formed a small minority within the totality of the group of refugees in the mini safe area.

4.207. Greater clarity exists as to the number of men at the compound. On July 13th 1995 a list was drawn up of men of fighting age that became known as “the 239 list” or “the Franken list”. The list consisted of 251 names. Around 70 men refused to put their names on the list because they were afraid of problems instead of protection. The NIOD Report concluded that about 320 men were at the compound (NIOD, p. 2659). This matches up with witness estimates of at least 300 men to which the ICTY refers (Krstic legal ground no 37).

4.208. In the mini safe area circumstances were poor. The ICTY deliberated as follows:

“Conditions in Potocari were deplorable. There was very little food or water available and the July heat was stifling.” (Krstic legal ground no 38).

And:

“The standards of hygiene within Potocari had completely deteriorated. Many of the refugees seeking shelter in the UNPROFOR headquarters were injured. Medical assistance was given to the extent possible; however, there was a dramatic shortage of medical supplies. As a result of the VRS having prevented aid convoys from getting through during the previous months, there was hardly any fresh food in the DutchBat headquarters. There was some running water available outside the compound. From 11 to 13 July 1995 the temperature was very high, reaching 35 degrees centigrade and the small water supply was insufficient for the 20,000 to 30,000 refugees who were outside the UNPROFOR compound” (IGH February 26th 2007, legal ground no 284).

4.209. On 12th and 13th July 1995 these circumstances deteriorated visibly. In answer to the question whether there was anything he could say about the hygiene at the compound Franken made the following statement to the Parliamentary committee of inquiry:

“There wasn’t any. That’s probably the best answer I can give. People were so panic-stricken that they were doing their doings in the hallway entirely understandably for that matter. When that occurs where there are 5,000 people in a temperature of 30 degrees above zero sitting in a bare concrete hallway you can imagine what that’s like. We didn’t have any water for them to wash in though we did manage to arrange for water for babies and handtowels and that sort of thing that the men could hand in and that could be used as nappies for babies and small children. People were sitting there impassively in that filthy mess and women were lying there giving birth; it’s most unusual. Let me just put it like that.” (PE hearings, p. 74).

4.210. When asked how long the refugees could be held at the compound and the surrounding area from July 11th 1995 Franken made the following statement to the Parliamentary committee of inquiry:

“People were already dying. We had buried nine or eleven people at the base who had not died as a result of acts of war but because of exhaustion and such like. My information was that with a level of certainty of one less or one more depending on the weather we could do it for another four days.” (PE hearings, p. 73).

4.211. In the transitional period Dutchbat concentrated on its humanitarian task and the preparation of the evacuation of Dutchbat and the refugees in the mini safe area.

4.212. The evacuation of the refugees was discussed between Karremans and Mladic. Mladic mentioned the order in which the refugees should be carried off. The last group was that of the men aged between 16 and 60 years of age who were first to be screened for war crimes. Mladic had informed Karremans that “after screening the men would be returned to the enclave” (IGH February 26th 2007, legal ground no 287). After it had first been agreed that Dutchbat would supervise the evacuation and arrange transportation for the refugees in the final talk with Karremans Mladic made it known that he would be taking care of transport.

4.213. On July 12th 1995 at about 14:00 hours on the instructions of the Bosnian Serbs buses arrived at the mini safe area and the evacuation of the refugees began. The evacuation began in chaos: there was a massive run on the buses whereby the refugees threatened to trample one another underfoot. The first buses were overfull.

4.214. After the evacuation had commenced the behaviour of the Bosnian Serbs gradually began to change. The NIOD Report contains the following quotation from Lieutenant Mustert:

“At the point at which the buses drove up we just walked between them. If people failed to respond quickly enough to the signs from the BSA (VRS) to get in a kick or a push would be delivered at which we would urge them to stop. After just an hour they had had enough of this and we were no longer allowed near the buses. So then we were there with our backs to the wall.” (p. 2647).

4.215. Dutchbat having consulted with the Bosnian Serbs then supervised the way to the buses by creating a type of sluice with a human chain of Dutchbatters and a tape tied tight around it. The refugees who Dutchbatters called up in numbers were called to go through the sluice and into the buses (NIOD, p. 2,649). Franken explained this in a statement to the Parliamentary committee of inquiry as follows:

“The first thing we do is to make a sluice to try to regulate the massive flow of people. From the Serbian side too it was hectic when the stampede began. We wanted to prevent the Serbians from getting into a panic and doing God knows what.

(…)

The argument was: the Serbians use rather a lot of physical violence even against women and children to fill buses suitable for 40 to 50 people nevertheless with twice that number. With our presence we did try to direct that but the buses still kept on leaving overfull. I repeat: these people had to sit in such a thing for a few hours at very high temperatures. To prevent that we thought: if we ourselves could arrange these busloads the Serbians would not be able to overfill the buses.” (PE hearings, p. 75 to 76).

4.216. The buses transported the refugees to Tišca. There they had to get out and cover a few kilometres on foot through no man’s land between the area under the control of the Bosnian Serbs and that controlled by the Bosnian Muslims to Kladanj. There a Pakistani UN Battalion collected them and took them by bus to the airport at Tuzla where provisional reception had been arranged (Krstic legal ground no 49, NIOD, p. 2,651).

4.217. Shortly after the afternoon of July 12th 1995 when the evacuation had begun the Bosnian Serbs started systematically to remove men of fighting age from the rows of refugees making their way to the buses and to carry them off to the buildings close to the mini safe area (Krstic legal ground no 53). The men who managed to get to the first buses arrived safely along with the other refugees in Kladanj (NIOD, p. 2,651). After that the Bosnian Serbs stopped buses on their way screening them for men (Krstic legal ground no 56). In addition men who had come with the other refugees were taken out of the buses where they were to alight at Tišca and were carried off by the Bosnian Serbs who left the other refugees undisturbed (NIOD, p. 2,651).

4.218. In the afternoon of July 12th 1995 the Bosnian Serbs began to carry off the men in separate buses (Krstic legal ground no 59; NIOD, p. 2,648).

4.219. In the evening of July 12th 1995 the evacuation of the refugees was suspended. Then 4,000 to 5,000 refugees were evacuated. The next morning the evacuation was resumed. On July 13th 1995 at the end of the afternoon all of the refugees were carried off from the mini safe area situated beyond the compound. Then finally a start was made with carrying off the refugees from the compound. The NIOD Report states that this was going on at about 16:00 hours (p. 2701) but according to the UN Report this was at about 17:15 hours (no 348). In the evening of July 13th 1995 according to the ICTY at 20:00 hours the evacuation of these refugees was complete (Krstic legal ground no 51). The compound was then populated by Dutchbat and the UN and MSF employees that left on July 21st 1995 along with Dutchbat.

4.220. Later it appeared that buses with men from Potocari went to Bratunac. The men who had not fled to the mini safe area but to the woods and had been held captive by the Bosnian Serbs were also taken to Bratunac. In total about 7,000 men from the safe area were killed in mass executions by the Bosnian Serbs that began on July 13th 1995 in the region to the north of the town of Srebrenica and then on July 14th up to and including July 17th 1995 at various places to the north of Bratunac (Krstic legal ground no 59, 66 to 67).

4.221. The IGH and the ICTY are of the opinion that the killing of the men evacuated from the mini safe area and the men who had not fled to the mini safe area and were held captive elsewhere is genocide in the sense in which that is understood in the Genocide Convention. In this connection the ICTY deliberated as follows:

“Evidence presented in this case had shown that the killings were planned: the number and nature of the forces involved, the standardized coded language used by the units in communicating information about the killings, the scale of the executions, the invariability of the killing methods applied, indicate that a decision was made to kill all the Bosnian Muslim military aged men.” (Krstic legal ground no 572).

4.222. In addition on July 12th and 13th the Bosnian Serbs killed men in Potocari. It has not been possible to establish the precise number. The NIOD Report estimates it as being between 100 and 400 men (pp. 2668 to 2669).

4.223. The ICTY deliberated as follows about the dead men referred to in Potocari that it denotes as being “opportunistic killings”:

“Hence, it [= ICTY, District Court’s addition] cannot find that the killings committed in Potocari on 12 and 13 July formed part of the plan to kill all the military aged men. Nevertheless, the Trial Chamber is confident that the mass executions and other killings committed from 13 July onwards were part of this plan.” (Krstic legal ground no 573).

4.224. We have been able to establish that in the night of July 12th to 13th 1995 Bosnian Serbs raped female refugees.

4.225. The war crimes Claimants listed that according to them Dutchbatters did observe but wrongfully did not report consist of killing and maltreating the male refugees in the mini safe area, raping women, separating the men from the rest of the refugees and “deporting” refugees. The discussion that follows on after this is aimed at Dutchbat’s observations of the killing and maltreatment of male refugees and of the rape of women in the mini safe area and in Potocari.

4.226. We leave beyond consideration what Claimants mention in terms of Dutchbat’s observations of war crimes from the period prior to the fall of Srebrenica for example the actions of Bosnian Serbs that Dutchbatters witnessed on July 10th 1995 on the road from Zeleni Jadar to Srebrenica where the Bosnian Serbs advanced with tanks and systematically shot a shell through the roofs of the houses situated along the road resulting in house after house going up in flames and then routed fleeing people by shooting at them using machine guns (NIOD, p. 2,173). After all these observations are not linked to any actions of Dutchbat attributable to the State.

4.227. The NIOD Report states that the Bosnian Serbs tried to prevent observations and patrols being carried out by Dutchbat (p. 2669). Dutchbat did not have a complete view of what was happening in and around the mini safe area and definitely not in the night of July 12th to 13th 1995. All the same Dutchbatters did observe war crimes being committed by Bosnian Serbs in the night of July 12th to 13th 1995.

4.228. Claimants refer to a number of observations by Dutchbatters in the period up to and including July 13th 1995 as described in the NIOD Report. The State has not disputed these observations. In addition the ICTY has included a number of observations by Dutchbatters in its judgment of the Krstic case and discussed observations by Dutchbatters in the hearings of the Parliamentary committee of inquiry. Taken as a whole these deal with the following observations whereby the male refugees are marked out even though they are not specifically called ‘man’ or ‘men’:

For the record the District Court calculates that Karremans did indeed understand the observations of Rutten (see above) and Oosterveen to be one and the same but as the NIOD Report explains it concerned two different locations and so also observations of incidents that must be distinguished from each other (NIOD, pp. 2722 to 2724)

4.229. Although these observations are not always first-hand observations of executions or concern the killing of male refugees by the Bosnian Serbs in some other way there is no doubt that the men in question were killed by the Bosnian Serbs. Since the Dutchbatters involved themselves couple their observations consisting of hearing shots with suspected executions their observations too become relevant.

4.230. In addition to this on July 12th and 13th 1995 rumours reached Dutchbat about bodies and/or executions for example as follows:

4.231. Dutchbatters also saw Bosnian Serbs maltreating refugees and made observations indicating inhuman treatment of those men the Bosnian Serbs had selected:

4.232. Claimants point to a witness statement made in the presence of the ICTY from which it appears that in the night of July 12th to 13th 1995 two Dutchbatters were witness to the rape of a woman by two Bosnian Serbs. With this they are apparently targeting the rape that Vaasen observed as referred to in legal ground no 45 in the Krstic case and on page 2686 of the NIOD Report.

4.233. Claimants further point to Dutchbatter Schuurman in 2002 declaring to journalists of Vrij Nederland [= a newspaper] that on July 13th 1995 whilst travelling from an observation post to the compound he saw “corpses everywhere” and smelt “the dreadful smell of dead bodies” that it was then at the time clear to him that “people were just being shot dead over there” and finally that despite his reports during his debriefing in Assen as to this in the debriefing report the only thing that came out right was that “it is possible that something strange was going on over there”.

4.234. The District Court deliberates that Schuurman’s statement appeared not to be a one-off statement given the conclusion in the NIOD Report in respect of the debriefing report that reads as follows: “Wherever possible the ‘narrow’ approach was maintained and disagreeable subjects were avoided and left underexposed” (NIOD, p. 3001).

In this connection of relevance too is the statement Lieutenant Van Duijn made during his debriefing about discovering “identity papers” described in the debriefing report as “personal possessions” (PE Report, p. 338). Moreover whilst drawing up the debriefing report apparently the rule held that an observation was not accepted if no “evidence of support” was regarded as being present (PE Report, p. 337).

4.235. The above justifies the opinion that Dutchbatters were witnesses to more war crimes than recorded in the debriefing report and related in the NIOD Report and the observations listed above. In this connection the District Court regards as relevant what the ICTY deliberated on about the situation in the mini safe area in the days following on from the arrival of the refugees there on July 11th 1995 as follows:

“By all accounts, the harassment of the Srebrenica refugees by Serb forces was too widespread and persuasive to be overlooked.”(Krstic legal ground no 155).

4.236. Claimants contend that from the word go Dutchbat and the State knew that genocide could or might take place. They point to the aim of preventing genocide when setting up the safe area and to paragraphs 14, 17, 19 and 27 ‘g’ of the Report of the Security Council Mission established pursuant to resolution 819 (1993) April 30th 1993 (UN Doc, S/25700). There the conclusion is drawn that without the demilitarisation agreement of April 18th 1993 (see 2.18) a “massacre of 25,000 people” could have taken place that justifies the efforts of UNPROFOR with the critical note in the margin that the fact that the Bosnian Serbs had little respect for the authority of UNPROFOR is a point of particular interest for the UN. Claimants further emphasise that in its pronouncement of February 26th 2007 the IGH had deliberated as follows:

“(…) given all the international concern about what looked likely to happen at Srebrenica, (…), it must have been clear that there was a serious risk of genocide in Srebrenica”.

4.237. These documents and deliberations confirm that even before the dispatch of Dutchbat the international community was concerned that genocide would take place in Srebrenica and that the risk of it was assessed as being serious. These are however insufficient grounds on which to base specific knowledge of Dutchbat and/or the State of the fate of the 7,000 men from the safe area even before the fall of Srebrenica.

4.238. In the above the District Court notes that the IGH deliberated that for the Serbian State it was not clear until after the fall of Srebrenica that there was a serious risk of genocide (legal ground no 436):

“Thirdly, the Court recalls that although it had not found that the information available to the Belgrade authorities indicated, as a matter of certainty, that genocide was imminent (which is why complicity in genocide was not upheld above (…)), they could hardly have been unaware of the serious risk of it once the VRS forces had decided to occupy the Srebrenica enclave.

(…)

Among the documents containing information clearly suggesting that such an awareness existed, mention should be made of the above-mentioned report (…) of the United Nations Secretary-General prepared pursuant to General Assembly resolution 53/35 on the “fall of Srebrenica” (United Nations doc. A/54/549), which recounts the visit to Belgrade on 14 July 1995 of the European Union negotiator Mr. Bildt to meet Mr. Miloševic´. Mr. Bildt, in substance, informed Mr. Milosevic ‘of his serious concern and pressed the President to arrange immediate access for the UNHCR to assist the people of Srebrenica, and for the ICRC to start to register those who were being treated by the BSA [Bosnian Serb Army] as prisoners of war.”

4.239. There is no reason to suppose that prior to the fall of Srebrenica the State was already for some considerable time aware or could have been aware that there was a serious risk of genocide that one of the 7,000 men was out of the safe area. Dutchbat’s observations however must be seen against the background of the actual general concern in the international community and that this obliged Dutchbat to be more alert.

4.240. In this regard finally the District Court deliberates that the “ethnic cleansing” that is discussed in the mandate (see 2.7) is linked to the cleansing of Bosnia of other ethnic groups by the Bosnian Serbs in their struggle towards a “Greater Serbia”. During the conflict in Bosnian Herzegovina there was earlier and for that matter on both sides ethnic cleansing in areas that had been captured. That the Bosnian Serbs would attempt to drive out non-Serbian ethnic groups from the area should be seen against this background and could be reasonably expected to happen. That does not hold for the genocide that took place in respect of the men from the safe area.

4.241. When assessing what Dutchbat knew or may have suspected about the fate of the men carried off by the Bosnian Serbs from within the mini safe area it boils down to facts and circumstances that Dutchbat knew about at the time and the conclusions that in the given circumstances they made or reasonably could have made and had to make. In this regard the District Court deliberates as follows.

4.242. The ICTY deliberated on the separation of the men of fighting age from the rest of the refugees with the aim of screening these men for war crimes as follows:

“The Prosecution’s military experts accepted that it was not inherently unreasonable or criminal for the Bosnian Serbs to conduct such screening given widespread and plausible allegations that Bosnian Muslim raiders from Srebrenica had committed war crimes against Bosnian Serb villages.” (Krstic legal ground no 156).

4.243. In the given circumstances there was no need that separating the men of fighting age from the rest of the refugees in order to screen them for war crimes should arouse fear at Dutchbat that these men would be treated inhumanely or would be killed. Whether that was any different in combination with the other facts and circumstances Duchtbat knew about is something we discuss below.

4.244. In this regard it is relevant that screening the men for war crimes would normally lead to either the selected men being brought before a court-martial with a view to being held in detention or to allowing them to go back to the other refugees in the mini safe area or to transport them to Kladanj. Handling the men during screening had to be according to the Geneva Conventions.

4.245. On July 12th 1995 Franken had been receiving more and more reports of the Bosnian Serbs using physical violence to interrogate the selected men. After the Bosnian Serbs had begun to carry off the men separately in the afternoon of July 12th 1995 Franken then heard that evening that buses with men were not arriving at Kladanj whilst the buses with the other refugees were arriving there. Franken made the following statement about this to the Parliamentary committee of inquiry:

“We began quite quickly to receive reports that after a number of times the blue bus no longer appeared at the point at which people were meant to alight at the border at Kladanj so it was clear that they were holding the men separately. Mladic had also announced this in advance. He announced that he wanted to examine every man of fighting age to see whether they were combatants – he used the word “war criminals.” (PE hearings, p.76).

4.246. The District Court is of the opinion that Dutchbat’s observation of the killing of the men on July 12th and 13th 1995 may in no way whatsoever be regarded as consonant with screening for war crimes. These opportunistic killings to use the words of the ICTY therefore together with reports of the use of physical violence against those being interrogated form a strong indication that the men the Bosnian Serbs had selected ran a real risk of death or inhumane treatment.

4.247. Basing its conclusion on the above the District Court is of the opinion that Dutchbat in the evening of July 12th 1995 must have suspected that the men selected and carried off by the Bosnian Serbs ran a real risk of death or inhumane treatment.

4.248. This suspicion was also alive among Dutchbat in the evening of July 12th 1995. Franken stated in the presence of the Parliamentary committee of inquiry that “it already appeared worse for the men than you could have imagined beforehand” (PE hearings, p. 76). Franken had then considered stopping the evacuation but decided not to do so in the interests of the large numbers of women and children who were being brought to safety because of it. Franken did however have a list drawn up on July 12th 1995 of the names of the men in the compound because of his concern and in the hope that this would act to protect them. His statement about this to the Parliamentary committee of inquiry is as follows:

“When I thought about how I could offer the men some sort of protection a trick from Amnesty [= Amnesty International] suddenly came to mind: anonymous victims are no victims. I then tried to find ways of giving the men an identity. You can do this in several ways for example by taking photos but I did not have those resources to hand. I then consulted with the committee we had meanwhile set up the well-known troika that acted to represent the refugees, tried to register all of the men with full name, date of birth, place of birth etc. It was the intention that I would bring out the list – I had also informed the Serbs that I had registered them – and that where possible I would publish the list to put the Serbs under a certain amount of pressure: watch out we know precisely who has left and we can monitor them and follow them.” (PE hearings, p. 77).

4.249. When Rutten and Van Schaik went into the White House (see 4.231) we saw that the men who were being held there were being treated badly and that they were very afraid. In this regard the deliberation of the ICTY about the visit of Krstic to the White House is relevant:

“However the Trial Chamber is satisfied that, from his presence at the White House, General Krstic must have known the segregated men were being detained in terrible conditions and were not being treated in accordance with accepted practice for war crimes screening. General Krstic must have realised, as did all the witnesses present in and around the compound that day, that there was a terrible uncertainty as to what was going to happen with the men who had been separated.” (Krstic legal ground no 367).

4.250. In the morning of July 13th 1995 Rutten and Van Schaik during their visit to the White House just referred to had seen that outside personal possessions including identity papers had been thrown onto a heap. Rutten stated to the Parliamentary committee of inquiry as follows:

“When approaching the house we walked through the garden and saw there heaps of identity papers, passports, work permits etc. Then we saw heaps of clothing there.” (PE hearings, p. 46; NIOD, p. 2718, footnote 611).

4.251. Van Duijn too on July 13th 1995 when the evacuation of the refugees was almost complete saw the pile of identity papers lying at the White House and discussed it with a Serbian commander who said the men no longer had any need of their passports. He made the following statement about this to the Parliamentary committee of inquiry:

“However when passports are no longer needed it begins to dawn on you that something very serious could be about to happen. That the vast majority would be killed was however at that point not something we could get our heads around” (PE hearings, p. 35).

4.252. Later on July 13th 1995 after the last men had been carried off from the White House the Bosnian Serbs set light to the heap of personal possessions. We could see this was going on from the compound (NIOD, p. 2650).

4.253. The ICTY deliberated as follows:

“The Chamber accepts that, at the stage when the Bosnian Muslim men were divested of their identification en masse, it must have been apparent to any observer that the men were not being screened for war crimes. In the absence of personal documentation, these men could no longer be accurately identified for any purpose. Rather, the removal of their identification could only be an ominous signal of atrocities to come.” (Krstic legal ground no 160).

4.254. The foregoing leads the District Court to conclude that where in the evening of July 12th 1995 Dutchbat could have suspected that the men who had been selected and carried off by the Bosnian Serbs ran a real risk of being killed or of being treated inhumanely on July 13th 1995 they knew that this would happen after they had seen the heap of identity papers lying about at the White House and in any case they had seen said heap burning as the men were carried off. Basing its opinion on statements by Franken, Rutten and Van Duijn the ICTY came to the same conclusion namely:

“At that point Dutch Bat soldiers were certain that the story about screening for war criminals could not be true: something more ominous was afoot.” (Krstic legal ground no 160).

4.255. Moreover the District Court is of the opinion that at the end of the afternoon of July 13th 1995 Dutchbat given what they knew then and had observed as reproduced above must have been aware of a serious risk of genocide of the men separated and carried off from Potocari by the Bosnian Serbs as referred to in the deliberation cited in 4.178 of the IGH: the Bosnian Serbs systematically selected men who were then badly treated and stripped of their identity papers – so that they could no longer be identified – and then carried off separately to an unknown destination.

4.256. Referring to the opinion of the IGH cited earlier about the existence of a serious risk of genocide the State points out that the IGH deliberated that not until July 14th 1995 was it clear that there was a serious risk of genocide.

4.257. That the opinion of the IGH relates to the knowledge of the Serbian State leaves intact that based on the facts and circumstances they knew of others were at some other moment aware or should have been aware of a serious risk of genocide. The opinion of the IGH therefore provides room for judging that Dutchbat in the given circumstances in respect of the men in the mini safe area at some other moment – namely at the end of the afternoon of July 13th 1995 – should have been aware of a serious risk of genocide of the men who had been carried off from the mini safe area.

4.258. The men who had not fled to the mini safe area but to the woods were literally out of Dutchbat’s sight. Dutchbat was aware that a large part of the male population from Srebrenica had not fled to the mini safe area. Van Duijn made the following statement before the Dutch parliamentary committee of inquiry:

“The night before Srebrenica fell, so the night of the 10th, the last day I retreated from the blocking positions, following the route of the refugees, we see a large column of men, some of whom we recognised because they were from the villages around the observation posts. We saw that those men were walking down the road towards OP Mike. This was the same column that broke out from the other route and most men were part of that group.” (PE hearings, p. 30).

Koster, who was at the bus depot in the afternoon of the 11th July 1995 to receive refugees, saw armed combatants saying goodbye to their families and leave for the hills in the west (NIOD, p. 2617).

Rutten made the following statement before the Dutch parliamentary committee of inquiry:

“At night we talked to the inhabitants of the enclave and to refugees. (…) I said: I see that many men are not here. They stated that most young men and combatants had left the enclave to break out on their own. This occurred in the area, as they indicated, between November and Alpha.” (PE hearings, p. 45).

4.259. In retrospect it became clear that a large part of the men who had not sought refuge in the mini safe area had fallen into the hands of the Bosnian Serbs and were killed during the mass executions that occurred from 13th July 1995. There is insufficient basis to hold that on 11th July 1995 – or at any other moment in the following days – Dutchbat was or became aware of the danger those men were in. Nor is there sufficient basis to hold, in the given circumstances and given its knowledge at the time about the fate of the men who had been or would be carried off by the Bosnian Serbs from the mini safe area, that Dutchbat could and should have known or suspected that the other men who had not fled to the mini safe area had fallen or would fall into the hands of the Bosnian Serbs and what their fate would be. The reasoning that Dutchbat knew that many men from Srebrenica had not fled to the mini safe area and that it was clear that the area outside the mini safe area was not safe because the men were fleeing through an area controlled by the Bosnian Serbs which was also full of landmines, is insufficient.

4.260. In this regard the District Court holds, superfluously, that since Dutchbat did not have reason to assume at any point in time that the men who had not fled to the mini safe area but to the woods were meeting certain death or inhumane treatment, its advice to flee to the woods – even if this advice was indeed given, which the State disputes – and not raising the alarm about it cannot be deemed as unlawful. Dutchbat could reasonably proceed to do so in the given circumstances.

(2) Claimants’ accusations regarding Dutchbat’s actions in the mini safe area after the fall of Srebrenica

4.261. The District Court shall now discuss seriatim the following accusations of Claimants about Dutchbat’s actions and assess whether they lead to liability of the State on account of unlawful acts:

4.262. Claimants argue that in the period from 11th July up to and including 13th July 1995 Dutchbat observed many war crimes being committed by the Bosnian Serbs, but failed to file reports about them to superiors in the UN chain of command. Claimants argue that this failure to report led to the international community becoming informed about these war crimes too late, namely after (most of) the genocide following the fall of Srebrenica had taken place. Claimants also argue that if an alarm about said war crimes of 12th or 13th July 1995 had been raised, the lives of many could have been saved as this could have prompted the UN, NATO or individual states to launch a direct military intervention.

4.263. Parties agree that Dutchbat did not report all observed war crimes to the UN chain of command. Dutchbat did not submit any written notification of war crimes at all. Karremans orally passed on information about Rutten’s discovery of nine dead bodies in civilian clothes (see 4.228) in the morning of 13th July 1995 to Bosnia Herzegovina Command in Sarajevo and also brought it to the attention of Nicolai. Although Karremans stated during the debriefing in Assen that he also orally reported Groenewegen’s observation in the afternoon of 12th or 13th July 1995 of an execution of a refugee at about 200 meters from the compound to the UN chain of command, the District Court is unable to establish with a sufficient degree of certainty – since confirmation from another (Dutchbat) source is not available – that the notification of Groenewegen’s observation actually left the compound. The District Court takes into consideration that the NIOD raised the question whether Karremans may have made a mistake regarding this aspect, as he had stated during the debriefing in Zagreb on 22th July 1995 that he had no knowledge of any eyewitness accounts of actual executions (NIOD, p. 2720, middle). It has not been asserted, nor is there any evidence that Dutchbat made any other notifications.

4.264. In the opinion of the District Court Dutchbat’s failure to report war crimes observed during the transition period constitutes a violation of generally accepted standards in accordance with law of custom, in connection with which special reference is made to 4.175-4.177 for the interpretation of the standard of care. It is indisputable that during the transition period Dutchbat could not protect the refugees inside and around the mini safe area located outside the compound on its own, i.e. without outside help, due to its limited manpower and due to the superior military strength of the Bosnian Serbs. Furthermore, Dutchbat at most had a clear view of the men selected by the Bosnian Serbs who were being held in various buildings outside the mini safe area. In these circumstances Dutchbat had the obligation to report the war crimes it had directly and indirectly witnessed up to that point as well as from that moment onwards to the UN chain of command.

4.265. The District Court finds that the argument put forward by the State, namely that reporting war crimes did not have the highest priority in Dutchbat as it lacked the manpower to maintain order on site does not constitute a justification defence, not even when it is taken into consideration that decisions were made under great pressure in a war situation.

4.266. The State put forward the argument that Dutchbat could not have reported more than was already known by the UN shortly after the fall of Srebrenica and that more reports would not have led to the UN, NATO or individual states launching a direct military intervention.

4.267. In establishing what was known in the UN chain of command about (suspected) war crimes committed by the Serbs and about possible preparations for genocide, the District Court follows the contents of the following passages from a UN report that is not disputed by either party:

“D. 13 July -- the killing of hundreds of unarmed men and boys begins

346. The UNMOs in Srebrenica reported that the Serbs had resumed the deportation of the population outside the Potocari compound at approximately 0700 hours on 13 July. The Serbs again continued to separate the men from the women and children, diverting the men to Bratunac. As before, the BSA prevented Dutchbat from following the latter group, or ascertaining where the men were being taken. The UNMOs also reported that they would try and investigate a rumour that the Serbs had killed several men that they had taken out of the crowd the previous day. Neither the UNMOs nor Dutchbat reported that they had observed or had reason to believe that any other abuses had been committed thus far. (…)

349. As the process of deportation was coming to an end, the first UNHCR team was able to reach what was left of the Srebrenica enclave. The UNHCR convoy had set out from Belgrade on 12 July, but had been stopped at the international border, and allowed to proceed only on the afternoon of 13 July. The convoy passed through Bratunac, where Serb soldiers, many of whom appeared to be drunk, could be seen celebrating in the streets. The convoy then proceeded to Potocari, where they found UNPROFOR and Serb soldiers working together to bring the last groups of Bosniacs from the UNPROFOR compound to the waiting Serb buses. When this operation was completed, and after having attempted to secure safe passage out of Potocari for UNHCR’s local staff members, the UNHCR convoy returned to Bratunac. There the UNHCR staff members heard from local Serbs that large numbers of Bosniacs were being held at the nearby football field. Darkness was falling, and from their motel rooms, the UNHCR team could hear sporadic shooting from the direction of the football field.

350. By the end of the day on 13 July, there were virtually no Bosniac males left in the former “safe area” of Srebrenica. Almost all were in one of four categories: (…)

351. The UNMOs and Dutchbat were aware that Bosniac men were being detained in Bratunac, but did not know the precise numbers or locations. (…)

352. Although the precise details of what happened to the men of Srebrenica on 13 July have only been reconstructed after subsequent enquiry over the past 4 years, there was concern at the time, and at least five written messages were sent on that day, expressing alarm about potential human rights abuses having been committed or that potentially might be committed.

353. On the afternoon of 13 July, the UNMOs reported that General Mladic had told them that there were “several hundred” bodies of dead Bosniac soldiers in the Bandera triangle portion of the enclave. Mladic had requested Dutchbat to inform the ARBiH that that it was not his “intention to kill any more soldiers. They only have to surrender and hand over their weapons.” However, the BSA did not permit the UNMOs or Dutchbat to visit the area to verify that the bodies were indeed there. This report was subsequently forwarded up the United Nations chain of command, reaching the Secretariat in New York the next morning. The SRSG requested that the report not be made public, in order not to place the UNMOs in Srebrenica in further danger.

354. A team of UNMOs in Sector Northeast separately reported that they had spoken to some of the refugees arriving in Kladanj from Potocari. The refugees told of having witnessed “men being separated from others, severely beaten, stoned and in some cases stabbed.” They added that 30-35 wounded had been taken to Bratunac, and that another vehicle had “disappeared” en route to the drop-off point. In another report on 13 July, the UNPROFOR Commander (who had been recalled from leave) informed the SRSG and the Force Commander that “reports of abductions and murder, unconfirmed as of yet, are beginning to be heard” from the Srebrenica area.

355. The Chargé d’Affaires of the Permanent Mission of Bosnia and Herzegovina also officially expressed his Government’s concern on 13 July, in a letter to the Secretary-General, the text of which was circulated as a document of the General Assembly and the Security Council (A/50/285; S/1995/573). He communicated the reports his Government had heard that men aged 13 years and older had been separated from those transported to Kladanj, and that their whereabouts were unknown. He added that there had been additional reports of women between the ages of 15 and 35 whose whereabouts were also unknown. He noted that “the fate of these detainees is uncertain and there are substantial grounds to fear their execution, though these reports could not yet be confirmed.” He concluded his letter by stating that “since the United Nations has failed to defend the population of Srebrenica, on United Nations demilitarized territory, it is not absolved of its obligations to provide for them now, once in Government-held territory, after having exposed them to life threatening danger resulting from the absence of timely United Nations action.”

356. The Secretariat also learned from another source on 13 July that the Serbs had separated males of military age from amongst the displaced persons and brought them to Bratunac. The same day, the Secretariat expressed concern to the SRSG that, without the presence of the NGOs, ICRC or other United Nations agencies in the area, the fate of these displaced would remain unknown. The Secretariat stressed that it was imperative that in any negotiations with the Serbs, access to these individuals be given priority.

(…)”

4.268. The District Court concurs with the conclusion drawn by the UN Secretary-General based on the passages cited above:

“359. Thus, on 13 July, there was strong alarm expressed at various levels that abuses may have been or were being committed against the men of Srebrenica, but none had been confirmed to have taken place at that time. Efforts were nevertheless focused at the highest levels to try and address the situation.”

4.269. Contrary to what the State argues, the District Court is of the opinion that Dutchbat could have reported more than that which the UN already knew shortly after the fall of Srebrenica. Dutchbat’s reports of the observations mentioned above could have been a confirmation of crimes against male refugees in Potocari, particularly the summary executions, which were lacking according to the UN Secretary-General’s statement in the above passage regarding July 13th 1995. Based on other information from the UN Secretary-General’s report, particularly sections 403 and 404, the District Court concludes that his Secretariat did not receive a report about this confirmation until ten days after Dutchbat’s debriefing in Zagreb on July 22nd 1995. The information put forward by both parties and the contents of the NIOD report (part IV, chapter 4, section 24) do not prove that Dutchbat or UNMO gave first-hand confirmation of executions at an earlier time.

4.270. The next point to be addressed is whether or not it can be claimed with a sufficient degree of certainty if the lives of Claimants’ family members would have been saved, in other words, whether or not Dutchbat’s actions would have resulted in military intervention in the very short term, within several days, given the fact that most executions took place in the period from July 14th to 17th 1995, if Dutchbat had reported all of its observations of July 12th and 13th 1995.

4.271. In this connection, Claimants point out the following passage from the UN report:

“It is harder to explain why the Dutch battalion did not report more fully the scenes that were unfolding around them following the enclave’s fall. Although they did not witness mass killing, they were aware of some sinister indications. It is possible that if members of the Dutch battalion had immediately reported in detail those sinister indications to the UN chain of command, the international community may have been compelled to respond more robustly and more quickly, and some lives might have been saved.” (no. 474).

Furthermore, they derive from a quotation from chapter eight of part III of the NIOD report (“Plans for the recapture of Srebrenica”) that a sizeable armed force, in the form of a Rapid Reaction Force for example, was kept ready for deployment to provide protection to Dutchbat, and they therefore conclude that there is no reason to assume that there would not have been options to provide military protection to the population.

4.272. The State, on the other hand, argues with reference to the NIOD report that there was no, or at least hardly any, support at an international level for a recapture of the safe area and that such an operation was not feasible from a military point of view, or at least that the success of such an operation was entirely uncertain. Furthermore, the State points out the conclusion drawn by deputy head of Operations Hilderink, shortly after the fall of Srebrenica, that there were not enough troops available for the recapture and that the accelerated build-up of the Rapid Reaction Force did not offer possibilities: by the time the troops could have been deployed, all refugees would already have left the mini safe area (NIOD, pp. 2414 to 2415).

The State also cites the analysis of Van Kappen, employee of the UN Secretary-General, which is described in the NIOD report (p. 2426) as follows:

“In any case, Van Kappen believes that the UN had to take into account that a recapture would have entailed three separate military plans. First of all, the recapture of a land corridor to the enclave and the area belonging to the former Safe Area. Second of all, an operation to ensure provisioning for an indefinite period of time and thirdly an air campaign to take out the VRS Air Defence, also across the Drina river in Serbia. Such an air campaign required NATO’s consent. All in all, this required a full division in order to recapture Srebrenica, to be reduced to a brigade and mechanised division to keep a land corridor open, a total of 35,000 men, to be reduced to 15,000 men. Van Kappen believed that the Rapid Reaction Force was not suitable for opening up a land corridor.”

4.273. The District Court is of the opinion, also in the light of the State’s defence, that Claimants’ arguments provide an insufficient basis for the conclusion that Dutchbat meeting its duty to report would have led to a direct military intervention of the UN, NATO or individual states and also that the case dossier does not provide that basis. This opinion is clarified below as follows.

4.274. From the cited passages from the UN report it indisputably follows that on July 13th 1995 the UN chain of command was aware of several “sinister indications” about crimes against male refugees, albeit possibly in less great numbers and less detailed than the indications Dutchbat had. It does not become apparent from the UN report or any other source that a military intervention shortly after the fall of the safe area was not launched (simply) because the “sinister indications” available to the UN Secretary-General were not confirmed yet (by the report of direct observations of Dutchbat). However, there are strong indications that this intervention was not effected due to the lack of feasibility.

4.275. In 4.141, the time required to prepare a military intervention, the uncertainty of a feasible military intervention to recapture the safe area, and the hesitations and negative reactions to plans to that effect expressed by the UN and the international community were discussed. This uncertainty is also present in the opinions of Hilderink and Van Kappen, on which Claimants have not taken a reasoned or substantiated position to the contrary apart from their standpoint given in 4.271. Claimants’ standpoint does not carry sufficient weight against the practical barriers and obstacles to a timely military intervention, which are not contested with reasons by Claimants, and against the hesitations of the UN and the international community about a timely military intervention. Claimants’ standpoint therefore provides insufficient basis for the conclusion that Dutchbat’s compliance with the duty to report could have led to a timely deployment of the Rapid Reaction Force.

4.276. Following on from the above, the District Court is of the opinion that a military intervention would not have been launched if Dutchbat had met its duty to report. In this regard the District Court refers to the fact that on July 16th 1995 Janvier informed the UN Secretary-General that he agreed with Van Kappen’s analysis and that the recapture of the safe area lay outside the capabilities of UNPROFOR, all the more so because a possibly military action would have to be undertaken out of sight of a hostile population and in all probability would have led to an overt war with Bosnian Serbs and possible even Yugoslavia, as NATO would have had to attack the integrated air defence system. This was the last word on the French ideas discussed in 4.138 and elsewhere about recapturing the safe area (NIOD, p. 2429). Van Kappen analysis applied in full to the situation on July 12th and 13th 1995.

4.277. The conclusion therefore is that the question whether Dutchbat’s (proper) compliance with its duty to report would have led to a direct military intervention of the UN, NATO or individual states is answered in the negative. In a situation such as this, the follow-up question remains unanswered whether direct military intervention would have resulted in the lives of Claimants’ family members being saved with a sufficient degree of certainty.

4.278. The conclusion is that Dutchbat wrongfully failed to report observed war crimes to the UN chain of command. However, the State is not liable for this unlawful failure, as the causal connection, required for liability, with Claimants’ damages is lacking.

4.279. The foregoing includes the opinion that compliance with the duty to report could not have prevented in any way the Bosnian Serbs from committing (more) war crimes in Potocari on July 12th and 13th 1995, including the rape from Claimant [Claimant 10]’s statement (see 2.45.10).

4.280. Claimants accuse Dutchbat of failing to provide adequate medical care to refugees, allegedly acting in violation of Gobilliard’s order to “provide medical assistance and assist local medical authorities”. In this context, Claimants point out an internal Dutchbat memorandum of July 10th 1995 which states that priority was given to keeping a “base stock” for possible Dutchbat victims and Karremans’ order, a “low point” for Claimants, not to carry out operations on refugees.

4.281. Whether or not those acts constitute unlawful acts on the part of Dutchbat can be left undiscussed, as these allegations of Claimants are not connected with the genocide that was committed. Other damages in connection with this these acts were not put forward. This accusation of Claimants therefore cannot succeed.

4.282. During the evacuation of the refugees, the Bosnian Serbs took weapons away from Dutchbat soldiers. Initial reports to this effect were received around 18:00 on July 12th 1995. Initially, the Bosnian Serbs wanted to exchange weapons, which the Dutchbat soldiers refused. As time progressed, an increasing amount of Dutchbat soldiers were threatened with Kalashnikovs or by means of other forms of intimidation, such as showing bullets Dutchbat’s flak jackets could not withstand, and forced to hand over their weapons and flak jackets (NIOD, pp. 2647 to 2648). When the buses with refugees left on July 12th 1995 Dutchbat sent along one or two vehicles with communication equipment per convoy to supervise that part of the evacuation. In the afternoon and evening of July 12th 1995 the Bosnian Serbs took away fourteen Mercedes vehicles from Dutchbat (NIOD, pp. 2650 to 2651).

4.283. It is the District Court’s opinion that handing over weapons and other equipment was contrary to Gobilliard’s order not to do so, but that this cannot be considered as unlawful towards Claimants, given the circumstances, as Dutchbat soldiers were forced to do this and it has not been asserted, nor is there any evidence that there was a realistic alternative.

4.284. In order to answer the question whether or not Dutchbat should have allowed all refugees entry to the compound during the transition period, particularly after strong suspicions had arisen in the evening of July 12th 1995 that the men selected and carried off by the Bosnian Serbs ran a real risk of being killed or inhumanely treated, it is important to take account of the circumstances in which the decision to allow the refugees entry to the compound was taken and implemented as well as the considerations on which that decision was based.

4.285. The decision to allow refugees entry to the compound was taken when the city of Srebrenica nearly fell and refugees were expected to come to Potocari who would have to be received there. The Bosnian Serbs had made it known on July 11th 1995 that refugees were not allowed to enter the compound. They had also set an ultimatum which was accompanied by the threat to kill the Dutchbat soldiers who had been taken hostage and to use all weapon systems in an attack on the compound and the city of Srebrenica (NIOD, pp. 2603 to 2604). It was unclear how the situation would develop, both in terms of what would (have to) happen with the refugees and the response/further actions of the Bosnian Serbs.

4.286. Franken made the following statement before the Dutch parliamentary committee of inquiry about the grounds for allowing some refugees entry to the compound:

“The entire compound was in the Serb artillery’s line of direct fire. The Serbs were close on the right side of the CL, from where they had a complete view of our compound. By the time the refugees started to arrive I had no idea how things would progress. We then decided that we should at least make sure that the refugees would be protected from the Serbs to some degree and that they would not be stuck in open terrain. There was a huge factory building in the centre of the base. It was in a deplorable state, but did meet our requirements. I had to try to get the people inside, as it was also incredibly hot. And I had to prevent large-scale panic from breaking out among the refugees at the sight of a Serb. I also had to maintain our freedom of action to be able to deploy military means. If I had let all refugees in, the base would have been overcrowded from fence to fence and we would have lost our freedom of movement. I also would not have been able to anticipate something – anything – that could have happened. That is the reason why I said: Okay, we can take in refugees at the base, for sure. We can have the factory’s ground floor inspected. I ordered one of the military engineers to inspect the upper floor, because the building had suffered quite a lot of damage during previous hostilities. He believed that we could also use the upper floor, which we did. So we let in the maximum number of refugees at the base. We housed the others in the buildings directly outside the base.” (PE hearings, p. 71).

4.287. Rutten made the following statement before the Dutch parliamentary committee of inquiry:

“With the intent to receive them at the compound, we eventually let in about 5,000 people. And then the factory halls were full. You could ask yourself – and this was not something I was involved in – whether or not more people could have been admitted, but that would have meant that they would have been unprotected outdoors. That was the problem. I can only guess what kind of situation we would have been in. I could not assess that situation and the Serbs’ reactions beforehand.” (PE hearings, p. 45).

4.288. Even if the compound had been large enough, as according to Claimants it was as large as the Malieveld where crowds of about 20,000 to 25,000 people convene for demonstrations, a large part of the refugees would have been housed outdoors, in sight and in the field of fire of the Bosnian Serbs, who had threatened to open fire at the compound if Dutchbat received refugees there. Furthermore, maintaining freedom of movement at the compound for Dutchbat, which was also included in Franken’s consideration, was in the interest of the reception of and assistance to the refugees. When also considering the very precarious living conditions at the compound, admitting all refugees after all (about 25,000) at the compound during the transition period was not a realistic option.

4.289. When in the evening of July 12th 1995 suspicions had arisen that the men selected and carried off by the Bosnian Serbs ran a real risk of being killed or inhumanely treated, admitting all refugees to the compound who were in the mini safe area at the time still was not a viable option. Although it concerned less refugees than the day before, following the evacuation of 4,000 to 5,000 refugees, Franken’s consideration still applied and also to the remaining refugees, while the refugees’ circumstances were also visibly deteriorating.

4.290. Since the reception of all refugees at the compound was not a realistic option either during the transition period, failure not to make use of that opportunity cannot successfully alleged against Dutchbat.

4.291. Similarly it was not a realistic option for Dutchbat to admit only the male refugees to the compound after suspicions had arisen in the evening of July 12th 1995 that the men selected and carried off by the Bosnian Serbs ran a real risk of being killed or inhumanely treated. This would have entailed Dutchbat removing the men from the crowd of refugees who were in the part of the mini safe area that lay just outside the compound and bringing them to the compound. Aside from the fact whether or not the circumstances would have permitted the reception of these men, there are no indications that this would have been practicable, also in view of the limited manpower available to Dutchbat and the risk of endangering the evacuation of the other refugees, whose interests were best served with evacuation. The District Court therefore also finds the decision not to allow the male refugees entry to the compound during the transition period not unlawful.

4.292. Claimants argue that the State should not have cooperated with “the deportation” of the refugees, which they argue the State wrongly qualifies as “evacuation”. The State, in turn, objects to Claimants’ accusation to have cooperated with the “deportation”. So far, the District Court consistently used the term evacuation regarding Dutchbat’s decisions about all refugees after the fall, the removal of the refugees other than the male refugees by the Bosnian Serbs and in assessing the attributability of Dutchbat’s actions during the transition period. The District Court did not use this term when it concerned the removal of the male refugees selected by the Bosnian Serbs. Like Claimants, the District Court is of the opinion that the designation evacuation does not do justice to the actual situation of the removal of the male refugees, which was a deportation. The term evacuation does apply to the removal of the other refugees from the mini safe area, for which the District Court takes into consideration that a safe haven had to be found for the refugees after the fall of Srebrenica and that there was no reason to have concerns about the fate of these refugees. The fact that the men were removed from the queues for the buses, is not reason enough to also designate the removal of the other refugees as deportation.

4.293. Claimants’ accusation essentially does not concern the evacuation of the other refugees, but Dutchbat’s cooperation with the separation of the men from the other refugees prior to their deportation.

4.294. In so far as Claimants also wish to argue that Dutchbat should not have cooperated at all with the evacuation of the refugees, the District Court considers that there is no reason to regard Dutchbat’s cooperation with the evacuation of the other refugees who as a result were brought to safety, which is not in dispute.

4.295. The District Court proceeds to discuss Claimants’ accusation about the separation of the men from the rest of the refugees in chronological order, namely supervising the evacuation of the refugees on July 12th 1995 (1), the decision not to stop the evacuation in the evening of July 12th 1995 (2), continuing the supervision of the evacuation on July 13th 1995 (3), and Claimants’ asserted active involvement of Dutchbat in separating the men from the other refugees (4).

(1) Supervision of refugees on July 12th 1995

4.296. The State contests that Dutchbat was actively involved in separating the men from the other refugees. It argues that due to the run on the buses, which can be explained by the miserable conditions in which the refugees had been staying at and around the compound, Dutchbat only wanted to channel and guide the evacuation of refugees.

4.297. The State’s position is also found in Van Duijn’s statement before the Dutch parliamentary committee of inquiry, in which it is also acknowledged that Dutchbat’s supervision of the evacuation of refugees possibly made it easier for the Bosnian Serbs to remove men from the queues:

“(…) the only goal we had in mind at that time was to prevent people from collapsing, being trampled or crushing each other. And also to ensure that panic did not break out. At the time, we didn’t think that we could be giving the Serbs a means with which they could pick out the men more easily. (…) There was no other option, really. If you see people nearly crushing each other to death, you have to take action.” (PE hearings, p. 32).

Franken made the following statement before the Dutch parliamentary committee of inquiry about this:

“No, it didn’t make it easier. Granted, it accelerates the process, but they could have just as easily let the mixed group of refugees board the buses and then pick out the men. That does not have any effect at all. We just wanted to prevent a wave of refugees from panicking and running to the buses and that the Serbs would respond to that, possibly even with force. For that reason we wanted to channel the crowd.” (PE hearings, p. 76).

4.298. As concluded above in 4.247 Dutchbat could initially reasonably assume on July 12th 1995 that the Bosnian Serbs would screen the male refugees who were removed from the queues for war crimes and had no reason to fear for the fate of these men. In part against this background Dutchbat could in all reasonableness decide to supervise the evacuation in the manner described above.

(2) the decision not to stop the evacuation in the evening of July 12th 1995

4.299. In the evening of July 12th 1995 Dutchbat could suspect, and did suspect, that the men selected and carried off by the Bosnian Serbs ran a real risk of being killed or inhumanely treated. It was then also considered to stop the evacuation and it was decided not to do so.

4.300. About this decision Franken made the following statement before the Dutch parliamentary committee of inquiry:

“(...) The women and children who I had prioritised arrived unharmed. So there was no reason to stop the evacuation at that point. It was the only solution at the time, because I could not take care of them. (…) We expressly and clearly chose to help the large number of women and children. If I had stopped the evacuation, Mladic would not have had to worry at all, because the problem would have solved itself within a matter of days. That sounds very cynical, but it would have created a situation with many casualties without direct influence from Mladic (…) I started to have suspicions than it was more grim for the men than I initially thought. All in all, I decided, or rather advised, to continue the evacuation and not stop it. That means that you make a conscious decision: I chose 25,000 women and children at the possible expense of 600 to 700 men – it was also unclear to us that all those men would be killed.” (PE hearings, p. 76).

4.301. Claimants point out Franken’s answer to the following question posed by one of the ICTY judges of the Krstic case:

“You said you – considering the history, that is, you were saying that, considering the history of the Serb side, not directly in the area of Srebrenica but on the whole, “I expected the Serb forces to start killing civilians indiscriminately”. In other words, that would be delivering the Srebrenican people to their butchers, if I put your statement with the decision to let the Serbs evacuate them.”

His answer is: “That is correct, sir. I had those fears”.

4.302. In a hearing cited in legal ground 6.7 by the Appeals Court within the context of the Nuhanovic and Mustafic cases Franken made the following statement:

“He (Ibro Nuhanovic – Appeals Court) asked me to stop the evacuation, because he feared everybody would be killed by the Serbs. I answered that I feared, in fact, for the men as well but that, in fact, he asked me to make the choice between thousands of women and children and the men. And then he answered that he understood what I meant, and he agreed and went away”.

4.303. The statement cited above shows that Franken acknowledged the consequences of not stopping the evacuation. As has been considered above, it was not a realistic option to admit all refugees to the compound at that point, nor removing the men from the mini safe area outside the compound and admit them to the compound. Dutchbat did not have a viable alternative under the given circumstances to bring the refugees to safety and to take them out of the quickly deteriorating situation in the mini safe area. Furthermore, it is not proven – and Claimants do not argue this – that the other refugees who were being evacuated and taken to Kaldanj as agreed ran the risk of being killed or inhumanely treated. Continuing the evacuation was in fact in the interest of this large group of other refugees, who had been brought to safety and taken out of the miserable conditions of the mini safe area. In this regard the District Court takes into consideration that as a result of this situation in the mini safe area several people had already been killed and that on July 11th 1995 the assessment was made that the refugees – depending on the circumstances – could stay in the mini safe area for another three to five days. So on July 12th 1995 another two to four days. It is the District Court’s opinion that, in the given circumstances and in view of what it knew at the time, Dutchbat was able to take a reasonable decision to continue the evacuation, which brought the majority of the refugees to safety and out of a situation that was becoming increasingly untenable. The District Court therefore does not accept Claimants’ argument that an unjustifiable assessment.

(3) Continuing the supervision of the evacuation on July 13th 1995

4.304. Dutchbat also supervised the continued evacuation on July 13th 1995 in the manner described above. When in the morning of 13th July 1995 the buses showed up earlier than the Bosnian Serbs, Dutchbat started leading the refugees – including the male refugees – to the buses. Several buses with refugees left prior to the arrival of the Bosnian Serbs more than an hour later. There were also men in these buses. The Bosnian Serbs stopped a number of these buses en route and took the men out of the buses. A number of men who had left that morning survived however (NIOD, pp. 2739 to 2740).

4.305. Van Duijn, who that morning had decided to let the evacuation start, made the following statement before the Dutch parliamentary committee of inquiry:

“The first day of the transportation you see families being torn apart and men being separated from women and children. Those images are etched in your memory. As well as the kicking and beating of the Bosnian refugees by Serbian soldiers. The Serbian soldiers had said that they would arrive around half past eight in the morning. I myself was there at about six that morning. I also expected the buses to arrive later, but they had arrived earlier. At that time I thought: the Serbian soldiers are not here yet, the people have to leave anyway; let’s start; that way, the people can calmly walk to the buses themselves and we can assist them; we can also help them if people fall or are unable to walk. This way we can let them board the bus in a humane manner without Serbian soldiers interfering or pulling men out. I am happy that the NIOD has been able to find men who in those few hours slipped through the Serbian net and escaped. (…)” (PE hearings, p. 32).

4.306. Claimants refer to the statement Rutten made before the Dutch parliamentary committee of inquiry:

“(…) an alternative position was that of observer. That is what I said to be done: sit down on the side of the road, observe, write down names, record facts. If you end up in a situation where you no longer have weapons and are walking around in a T-shirt, but still can record that “millimetre”, then that should be your position. If you fail to do that or choose a different position, you take on some kind of responsibility. I was unwilling to take that responsibility. I tried to document what actually was happening, which was, to put it bluntly, a deportation. There is no other word for it.” (PE hearings, p. 49).

4.307. This statement refers to the discussion that Rutten and Van Duijn had later that day, on 13th July 1995. Claimants also refer to the documentation of this discussion in the. This discussion occurred after Rutten had found the bodies and had visited the White House. Rutten demanded that his fellow Dutchbat soldiers stop “doing odd jobs” for the evacuation and confronted the Bosnian Serbs, after which the evacuation was temporarily stopped (NIOD, pp. 2740 to 2741).

4.308. Rutten made the following statement before the Dutch parliamentary committee of inquiry about this discussion with Rutten:

“(…) there were in fact only two options. Those were clear to me. It was a choice between two evils. But I didn’t have the time to explain to him what exactly had been the run-up to the situation.” (PE hearings, p. 34).

4.309. About the possibility of preventing the separation of the men from the rest of the refugees, Franken made the following statement during the provisional witness examination in the Nuhanovic and Mustafic cases: “The only way to prevent the separation of the men was to stop the evacuation, about which I already made a statement.”

4.310. The District Court acknowledges that on July 13th 1995, after the decision had been made not to stop the evacuation, in its actions during the evacuation Dutchbat had to make an assessment about on the one hand the safety of the able-bodied men who were at risk of being removed from the queues by the Bosnian Serbs on their way to the buses, and on the other hand the safety of the other refugees. In view of the experiences of the day before, at the chaotic start of the evacuation when there was a large run on the buses and people were being trampled and buses became overcrowded, Dutchbat in all reasonableness was able to decide to continue to assist the evacuation by forming a lock through which groups of refugees walked in turns to the buses. The District Court also takes into account that the alternative of not assisting by means of taking up a position as observer as suggested by Rutten would not have stopped the Bosnian Serbs from pulling men out of the rows of refugees. It has not been asserted, nor is there any evidence that there was any alternative other than to stop the evacuation as mentioned by Franken. It has previously been assessed that Dutchbat was able to decide in all reasonableness to continue the evacuation, in view of the interests of the other refugees being served.

4.311. The foregoing leads the District Court to conclude that (also) Dutchbat’s supervision of the evacuation on July 13th 1995 by forming a lock and leading the refugees to the buses in turns is not unlawful.

(4) The asserted active involvement of Dutchbat in separating the men from the other refugees on July 13th 1995

4.312. In the given circumstances, Dutchbat could have been expected to only supervise on July 13th 1995 and to refrain from any active actions that could lead or contribute to Bosnian Serbs taking able-bodied men from the queues of refugees heading towards to the buses. According to the District Court active actions include any acts beyond the mere assistance of refugees to the buses via the lock through which they walked in turns. This includes, for example, pointing out men, removing men from the queues with the Bosnian Serbs and guarding the men who had been removed from the queues. Such actions cannot stand up to the test of reasonableness and must be deemed unlawful.

4.313. Most written statements of [Claimant 1] et al., mention supervision of the evacuation by Dutchbat as described above.

4.314. The written statement of [Claimant 3], stating that her daughter-in-law’s son – who was later found decapitated – was stopped by Dutch and Serbian soldiers and not allowed to get on the bus, describe the more active actions referred to above.

4.315. Two different written statements also relate to more active actions by Dutchbat on July 13th 1995, namely:

4.316. If these statements are true, these are unlawful acts by Dutchbat attributable to the State. The truth of these statements disputed by the State by arguing that there is no supporting evidence however does not need to be investigated because in the opinion of the District Court, the required causal relationship for liability of the State is lacking. The District Court considers as follows:

4.317. It cannot be established with a sufficient degree of certainty that the husbands of [Claimant 4] and [Claimant 9] would have survived in the absence of the more active actions of Dutchbat as described in their statements. After all, the Bosnian Serbs systematically selected men from the queues of refugees heading to the buses. Rutten’s statement before the Dutch parliamentary committee of inquiry describing the process of the assistance also reveals that the refugees had to walk several hundreds of meters before reaching the buses:

“Between two tapes, groups were assembled of 60 to 70 people and subsequently they were directed into the buses. In one spot the groups were assembled and a few hundred meters farther they were led to the buses. That morning I had already observed that on the interlinking terrain the men and women were being separated. (…)” (PE hearings, p. 48).

It is therefore very unlikely that the men would not have been pulled out of the queues by the Bosnian Serbs at any other or later time on the way to the buses. At any rate, Claimants have not put any argument forward from which it can be deduced that this chance was smaller. Furthermore, it has been established that the buses were stopped by the Bosnian Serbs and screened for men en route and at the alighting point in Tišca. Only a few buses that had left early on July 13th 1995 were not checked. The other buses were checked by the Bosnian Serbs en route, who then removed the men who had been able to get on board of the buses and carried them off. The following considerations of the ICTY provide a clarification:

“As the buses carrying Bosnian Muslim women, children and elderly to Kladanj reached Tišca, they were stopped and further screening was carried out for men who had managed to escape the net at Potocari.” (Krstic, legal ground no. 368) and:

“The strength of the desire to capture all the Bosnian Muslim men was so great that the Bosnian Serb forces systematically stopped the buses transporting the women, children and elderly at Tišca and checked that no men were hiding on board. Those men found in the buses were removed and subsequently executed.” (Krstic, legal ground no. 547).

Finally, it has been established that nearly all men from the mini safe area taken prisoner by the Bosnian Serbs were killed.

4.318. In view of Claimants’ standpoints, this accusation focuses on the men who had sought refuge at the compound. Apart from that, it applies here too that it has not been proven that the actions of Dutchbat during the evacuation of the other refugees who had sought their refuge at the compound are unlawful.

4.319. Dutchbat assisted with the evacuation of the compound in the same manner it had done up to that point. The Nuhanovic and Mustafic cases prove that – in any case by the end of this part of the evacuation, when nearly all refugees had left the compound – Dutchbat urged refugees who did not want to leave the compound to leave and/or sent them away from the compound.

4.320. In order to protect the able-bodied men, Franken faxed the list he had ordered to be drawn up to various national and international authorities, among which the Royal Netherlands Army. According to his interpreter, Franken told the Bosnian Serbs that they had to take into account that Dutchbat had this list and that copies had been sent to the International Red Cross in Geneva and the UN in New York (NIOD, p. 2747). Franken stated before the Dutch parliamentary committee of inquiry that he saw the drawing up of this list as the only way to protect the men: “I explained to you before why I did not physically protect the men. This does not mean that I regard the drawing up of a list as being equivalent to the physical protection of the men. But in the given situation, it was one of the possibilities to at least offer them some protection.” (PE hearings, p. 77).

4.321. In the opinion of the District Court, Dutchbat should have reassessed its actions regarding the evacuation of the refugees when the evacuation of the compound started in the afternoon of July 13th 1995, and it was unable to take the decision in reasonableness to let the able-bodied men leave the compound, especially with the knowledge it had at that time, namely that if the men were carried off by the Bosnian Serbs they would face death or inhumane treatment. The District Court therefore considers as follows.

4.322. The compound took up a separate position within the mini safe area. Dutchbat was fully in control of the enclosed compound. The Bosnian Serbs who were present in the mini safe area outside the compound and did not shy away from committing war crimes there, never interfered with the compound and respected Dutchbat’s authority over the compound. As has been assessed above, the State had jurisdiction in the compound, as stipulated in Article 1 ECHR and Article 1 ICCPR, in contrast with the part of the mini safe area that lay outside the compound.

4.323. At the start of the evacuation of foreign nationals at the compound, the group of refugees to be evacuated had decreased to approximately 5,000, about a fifth of the original number previously present in the mini safe area. This puts the argument of the State in perspective regarding the minor number of Dutchbat soldiers in the mini safe area in relation to the number of refugees. In addition, Dutchbat had an overall insight into the number of able-bodied men within the compound, of whom the majority were on the list Franken had had drawn up, and did not have insight into the number of men among the refugees in the part of the mini safe area outside the compound.

4.324. Because of the events that took place on July 13th 1995, especially the discovery of the burning pile of identity papers at the White House, Dutchbat knew when the evacuation of the refugees of the compound became relevant that the men selected and carried off by the Bosnian Serbs faced death or inhumane treatment. It has therefore also been considered that by the end of the afternoon of July 13th 1995, Dutchbat must have been aware of the serious danger (serious risk) of genocide if the men residing at the compound were to be carried off by the Bosnian Serbs.

4.325. The District Court acknowledges that the situation at the compound was miserable and that accommodating all refugees for a longer period was not a realistic option due to the lack of food and other provisions, and due to the risks that are inherent to a large group of people living in the sweltering heat and under unsanitary conditions.

However, it has not been proven that it was impossible to accommodate the orderly group of able-bodied men who were present at the compound for some time longer. Nor has it been proven that by allowing the other refugees from the factory hall at the compound to depart and letting the able-bodied men remain there would have presented practical problems. The situation in the compound differed in this sense as well from the situation of the evacuation of refugees from the part of the mini safe area outside the compound, which would have entailed Dutchbat picking men out of the crown of refugees.

4.326. The foregoing proves that the evacuation of the refugees from the compound differed substantially in a number of ways from the evacuation of the refugees from the part of the mini safe area outside the compound. In all reasonableness, Dutchbat could have been required to reassess the situation and all interests concerned prior to the evacuation of the refugees from the compound and that it should have decided to let the male refugees stay at the compound.

4.327. In that reassessment, Dutchbat should not and could not have reasonably relied on the fact that the list of able-bodied men at the compound drawn up by order of Franken would have offered the assumed protection against the fate faced by these men, known to Dutchbat. Dutchbat could and should have taken into account the possibility that the Bosnian Serbs would not respect this list. The Bosnian Serbs had already demonstrated during the evacuation of the refugees that they did not keep agreements to that effect, for example when it took over control of the evacuation on July 12th 1995 and apparently had already arranged buses. Furthermore, they did not shy away from selecting men from the queues of waiting refugees and from abusing refugees, literally under the gaze of Dutchbat soldiers. The Bosnian Serbs’ remarks about the pile of identity papers as referred to in the statement of Van Duijn (see 4.251) does not correspond with the purpose of screening the men, which was still being claimed by them, nor does the taking away and burning of these documents correspond with such a screening. These remarks and the conduct of the Bosnian Serbs showed that they were unreliable in their statements about the able-bodied men.

4.328. The District Court’s opinion given above, namely that Dutchbat was unable to take the decision in reasonableness to let the able-bodied men leave the compound is in accordance with the ruling of the Appeals Court in the Nuhanovic and Mustafic cases relating to the actions of Dutchbat in the final phase of the evacuation of the refugees from the compound. The Appeals Court considered that it cannot be assumed that a possible order from the UN or the Dutch government to cooperate with the evacuation of the refugees by the Bosnian Serbs would have entailed that the evacuation should have been supported if there had been a real risk for the able-bodied men at the compound to be killed or inhumanely treated by the Bosnian Serbs. The Appeals Court held that it would not have constituted a violation of any order given by the UN or the Dutch government if Dutchbat had decided no later than by the end of the afternoon of July 13th 1995 to no longer cooperate with the evacuation because of this risk. In accordance with the Gobilliard’s order “to take all reasonable measures to protect refugees and civilians in your care”, Dutchbat should have terminated its cooperation with the evacuation from that moment, in any case with regard to the able-bodied men, according to the Appeals Court. As is apparent from the foregoing, it is the opinion of the District Court that this applies from the moment the evacuation of refugees from the compound started, in which the necessity to terminate its cooperation became all the more pressing as, other than on July 12th 1995 and in the morning of July 13th 1995, Dutchbat must have been aware of a serious risk of the male refugees being killed in a genocide.

4.329. The actions of Dutchbat can be qualified as a violation of Article 2 ECHR and Article 6 ICCPR and as actions contrary to the standard of care under Book 6, Section 162 of the Dutch Civil Code. This standard of care is in this case exemplified by the principles of law that constitute the basis for the conventions mentioned above and the State’s obligations under international law to prevent genocide. Dutchbat’s acts are unlawful with respect to the male refugees who left the compound late in the afternoon on July 13th 1995.

4.330. In the opinion of the District Court, the required causal relationship regarding liability of the State is proven, as it is determined with a sufficient degree of certainty that the able-bodied men staying at the compound would have survived if Dutchbat had not cooperated with their deportation. The District Court therefore considers as follows.

4.331. Not cooperating with the deportation of the able-bodied men at the compound would in practice have meant that these men would have remained at the compound, together with Dutchbat and the local personnel and MSF personnel who were going to be evacuated along with Dutchbat. The Bosnian Serbs would have been unable to carry these men off and subsequently kill them. The fate of the men would have been tied in with that of Dutchbat. Under these circumstances, the Bosnian Serbs would have had no other option than to use force against Dutchbat and the compound in order to be able to transport the remaining men. The District Court holds beyond doubt that the Bosnian Serbs would not have proceeded to do so, even in the face of, in the words of the ICTY, “a concerted effort (...) to capture all Muslim men of military age” and was “the operation to capture and detain the Bosnian men (…) well organized and comprehensive” (Krstic, legal ground no. 85).The District Court takes into account the fact that the Bosnian Serbs up to that moment had not interfered with the compound and that their earlier threats to use force against the compound had proven to be empty. It was already clear to Franken when the enclave fell that Mladic would not allow UN soldiers to be killed (NIOD, p. 2241) and on July 12th 1995, Voorhoeve had already concluded that sparing peacekeeping forces was part of the Bosnian Serbs’ attack strategy (NIOD, p. 2439). It is also taken into account that the Bosnian Serbs must have been aware of the presence of an orderly number of able-bodied men at the compound, contrary to the rest of the mini safe area: during the Dutch parliamentary committee of inquiry, Franken stated that he had let two or three Bosnian Serbs onto the compound shortly after the fall of the enclave “because they wanted to make sure that the entire 28th division was not there with me at the compound” (PE hearings, p. 74). Finally, the Bosnian Serbs had found out on July 11th 1995 that the UN and NATO were willing to deploy air weapons and the District Court considers it impossible that no air support would have been provided if the compound had been attacked.

4.332. It follows on from the foregoing that the State is liable for the deportation of the able-bodied men who had been staying at the compound in the late afternoon on July 13th 1995 on account of unlawful acts.

4.333. The District Court also posed the question whether it can be determined with a sufficient degree of certainty that the lives of the male refugees staying outside the compound could also have been saved if Dutchbat had not only reported the observed war crimes from the evening of July 12th 1995 onwards, but also would have reported in the late afternoon of July 13th 1995 that due to observations earlier that day the male refugees would not be allowed to leave the compound.

4.334. The District Court answers this question in the negative. The District Court already determined above that the military intervention required to save the lives in question could not have been launched (in time). A report in the later afternoon of July 13th 1995 of the fact that the male refugees were not allowed to leave the compound could not have changed this. The opinion given in 4.333 also implies that it should be determined with a sufficient degree of certainty that the male refugees staying at the compound would eventually have been brought to safety via diplomatic channels, like the UN and MSF personnel, partly because the fate of Dutchbat would have been tied in with that of the male refugees. Since the latter would not have applied to the other male refugees, who after all had been deported from the mini safe area with a then unknown destination, or who had fled into the woods and consequently were out of sight, it cannot be determined with a sufficient degree of certainty that diplomatic efforts would have led to the saving of the lives of the last-named group of refugees.

(C) Conclusion regarding unlawful acts of the State

4.335. The District Court has determined that the following acts of Dutchbat attributable to the State are not unlawful:

(ii) Not providing adequate medical care to the refugees

(iii) Handing over weapons and other equipment to the Bosnian Serbs

(iv) Upholding the decision throughout the transition period not to allow refugees entry to the compound

(vi) Separating the male refugees from the other refugees during the evacuation, in so far as this constitutes assistance by forming a lock and guiding the refugees to the buses in turns.

4.336. In a ground included for the sake of completeness, the District Court has held that even if it is established that Dutchbat advised the male refugees to flee to the woods, this advice – as well as the failure to raise the alarm about their fleeing – are not be deemed as unlawful. Whether or not this advice was indeed given does therefore not require further investigation.

4.337. The District Court holds that Dutchbat wrongly failed to report the observed war crimes to the UN chain of command. Since the causal connection required for liability of the State between this failure and Claimants’ damages is lacking, the declaration claimed under 3.1 sub II cannot be granted regarding this failure. Even if it is established that the cooperation of Dutchbat with evacuation of refugees on July 13th 1995 also consisted of an active separation of the male refugees, this will not lead to allowing this declaration in this respect due to the lack of a causal connection between these acts and Claimants’ damages. Further investigation into the facts is therefore not required.

4.338. The District Court deems Dutchbat’s cooperation with the deportation in the late afternoon of July 13th 1995 of the able-bodied male refugees who had sought refuge at the compound an unlawful act for which the State is liable. It concerns about 320 men, among whom were Mustafic and Nuhanovic’s father and brother, to who the Nuhanovic and Mustafic cases related. The majority of these men were never seen alive again. A small number of them ended up in the Batkovici prison camp near Bijelina and were released in December 1995 under the Daytona Agreement, along with another group of men from Srebrenica (NIOD, p. 2659).

4.339. The liability of the State extends to the family members of the men who were carried off from the compound and then killed by the Bosnian Serbs in the late afternoon of July 13th 1995, the starting point for which are the spouses and children of the adult men and the parents of the underage men. It should be noted that men who have reached the age of eighteen are deemed adults.

4.340. The fact that in the Nuhanovic case the State was held liable for the damage incurred by Nuhanovic as a result of the transportation of his adult brother Muhamed is not a reason to expand the identified circle of persons towards whom the State is liable. Nuhanovic had a special position as a UN interpreter who was supposed to be evacuated along with Dutchbat. He made efforts to convince Dutchbat to let his brother remain at the compound and did not succeed in discouraging Dutchbat from sending his brother Muhamed away from the compound after the other refugees (maybe with the exception of the Mustafic family) had left the compound. This actual situation, in which the special position of Nuhanovic plays a role, would not have occurred if Dutchbat – as the District Courts finds it should have done – had decided to let the group of able-bodied men stay at the compound at the start of the evacuation of the refugees from the compound in the late afternoon of July 13th.

4.341. None of the male family members of [Claimant 1] et al. were at the compound in the late afternoon of July 13th. [son of Claimant 9], the son of [Claimant 9], the only male family member who had sought refuge at the compound, had already left the compound on July 12th 1995. The other male family members of [Claimant 1] et al. had either fled to the woods or had been separated and carried off from the mini safe area that lay outside the compound. The claims of [Claimant 1] et al. are therefore dismissed.

4.342. In so far as the Stichting represents their interests, the State is liable towards the family members referred to under 4.339 of the men who in the late afternoon of July 13th 1995 were deported from the compound and subsequently killed by the Bosnian Serbs. Further possibly relevant questions fall outside the scope of these proceedings and therefore remain undiscussed.

4.343. The foregoing entails that the declaration referred to under 3.1 sub II shall be awarded in the sense that the ruling is that on account of an unlawful act the State is liable for damages incurred by the persons referred to under 4.339 and represented by the Stichting, resulting from the cooperation extended by Dutchbat to the deportation of the male refugees who in the late afternoon of July 13th 1995 were deported from the compound in Potocari by the Bosnian Serbs and subsequently killed.

Legal costs

4.344. In view of the result of these proceedings, the State is ordered to pay the costs of these proceedings on the part of Claimants so far estimated at €6,060.85 (€70.85 in summons costs, €4,182 in court fees and €1,808 in lawyer’s fees; four items at rate II, applied in cases with an unspecified value).