Women in front a the memorial in Potocari cemetary that lists the names of the Srebrenica dead (Photo: Flickr/RNW)

A numbers game: Dutch liability for Srebrenica deaths

07 October 2016 by Stephanie van den Berg

After the supreme court ruled in 2013 in the Nuhanovic case [IJT- 173] that the Dutch state was liable for at least three deaths of Bosnian Muslims who had sought refuge on the UN compound in Srebrenica manned by Dutch troops after the fall of the enclave, there has been a constant battle between the state and representatives of the victims trying to expand the Dutch liability to include more victims.

When the Bosnian Serb troops overran the designated UN “safe area” on July 11, 1995, they separated the men from the women, while lightly armed and physically outnumbered Dutch UN peacekeepers looked on. They would go on to summarily execute over 8,000 Muslim men and boys, in what is Europe's worst single atrocity since World War II and the only episode in the bloody Balkans wars to have been ruled a genocide.

Srebrenica and its meaning has always been a numbers game. In the region the number of people killed is still disputed by Bosnian Serbs, despite a number of judgements by the International Criminal Tribunal for the former Yugoslavia (ICTY) [IJT-185] and forensic evidence of bodies exhumed from mass graves and identified through DNA analysis.

In the appeals case of the Mothers of Srebrenica foundation against the Dutch state, which was heard in a The Hague court on Thursday it was about different numbers. Here no one disputes the scale of the massacre but the focus is on the exact number of victims for which the Netherlands can be held liable, for failing in their duty to protect them.

In this case, separate from the Nuhanovic case, 2014 a lower court ruled that the Dutch state was liable for the deaths of a group of some 320 men who were among 5,000 refugees allowed onto the fenced off UN compound. Just like the supreme court in the Nuhanovic case, the court ruled that Dutchbat had effective control over the fenced off area, and concluded that they should have allowed the Muslim Bosnian men to stay on the base. There, the court assumes, they would have been safe from the Bosnian Serbs.

But there were many more refugees around the Dutch base in the village of Potocari just outside of Srebrenica. Some 2,000 men and boys were among between 10,000 and 15,000 people gathered in what Dutchbat labeled at the time “a mini safe area”. They too were handed over to the Serbs and subsequently killed.

According to the lawyers for the Mothers of Srebrenica, who represent some 6,000 victims relatives, the Dutch are also liable for failing to prevent the killing of these men. Here they argue that all the refugees around Potocari should have been allowed to stay inside the fenced off compound area where they could be protected.

And taking the argument yet another step, in court the lawyers also sought to establish that the Dutch were actually liable for all of the over 8,000 victims of the genocide, because they did not prevent the fall of the enclave, and thereby enabled the Bosnian Serbs to massacre the Srebrenica men.

“We think the state should be held liable for a much larger group because there were possibilities (for Dutchbat) to save many more men,” lawyer Marco Gerritsen explained.

At the same time as Gerritsen is arguing for the higher numbers, the Dutch state in its appeal is trying to limit its liability to just the three deaths in the Nuhanovic case because that supreme court decision cannot be appealed. For the Dutch state the case is all about the reality of who was in charge. The lower court in this case and the supreme court in the Nuhanovic case found the state had “effective control” over the area of the Dutchbat compound in the aftermath of the fall of the enclave when the UN structure disintegrated leaving the Dutch in control.

On appeal in the Mothers of Srebrenica case the state argued that the Dutch did not have “complete authority” over the compound and dismissed the court's assumption that the Bosnian Serb troops would have left the refugees on the compound unharmed if they had been allowed to stay was “not in line with the reality of the situation at the time”. In fact, according to the state's attorneys, everyone on the compound including Dutchbat soldiers themselves were dependent on the whims of the Bosnian Serb army which posed a real threat.

“The Bosnian Serbs did not respect the integrity of the compound and the existing situation was only tolerated because this way they did not need to expend any energy to keep Dutchbat in line,” they argued.

In addition, they dismissed any suggestion that the refugees would have been safe if they would have been allowed to stay on the compound. “I believe there is no way the Bosnian Serbs would have accepted that situation,” lawyer Bert-Jan Houtzagers, acting for the state, told the court.

The state also said that contrary to the plaintiffs arguments, the Dutchbat leadership had “no actual knowledge of a genocide risk” despite reports from individual soldiers who reported killings and voiced unease about the Dutch presence during the separation of the men from the women. According to the state, under Dutch law, there needs to be actual knowledge and understanding of a risk before neglecting to act can be ruled to be an illegal act. The lawyers for the state told the court that while the Dutchbat leadership “entertained the possibility” that the Bosnian Serbs would kill all the men, they “did not have knowledge that it would happen”.

As the lawyers locked horns in court about three or 320 or 2,000 for the women of the Mothers of Srebrenica who traveled to the Netherlands the most important numbers were very different. Munira Subasic (69) lost over twenty relatives in the genocide including her husband and son.

“After 22 years all they found of my son were two small bones: one in a mass grave in Potocari where I last saw him and  the second some 20 kilometres away in another mass grave,” she told IJT.

Judgement in the case is set for March 14 next year