Preparations for the burial of Srebrenica victims at the Srebrenica-Potočari Memorial and Cemetery for the Victims of the 1995 Genocide in 2010 (Photo: Stephanie van den Berg)

Murder by numbers

28 June 2017 by Stephanie van den Berg, The Hague (The Netherlands)

The Srebrenica massacre always seems to boil down to numbers when it gets to court. I have sat through many hours of discussions about the actual number of victims, whether that number was large enough to constitute a genocide, the precise times to pinpoint who knew what and when at the International Criminal Tribunal for the former Yugoslavia (ICTY) and later in the genocide case before the International Court of Justice (ICJ).

Court cases are sometimes said to give victims a voice and I do believe they do in a small way. But court cases are often also a setting where victims and events are reduced to numbers, something to be quantified. Is 8,000 men enough dead to be genocide? Yes, said the judges of the ICTY and the ICJ because genocide is killing with the intent to destroy a racial, religious of ethnic group in whole or in part. After a while, you become used, inured even, to the Srebrenica numbers because you have heard them so often.

The case of the Mothers of Srebrenica versus the Dutch state was also about numbers (IJT blog). In 2014 a The Hague court found the Dutch state was liable for the deaths of a group of over 300 men who were among 5,000 refugees allowed onto the fenced-off UN compound. 

Some 400 lightly armed Dutch blue helmets were there to protect the U.N. declared safe area of Srebrenica. When Bosnian Serbs overran the enclave om July 11, 1995 they retreated to their base in the nearby village of Potocari. Tens of thousands of terrified Bosnian Muslim refugees from the enclave also flocked to the base hoping for UN protection. But the Dutch, believing the Bosnian Serb story that the male refugees needed to be screened to weed out possible war criminals, cooperated with the Bosnian Serb-led evacuation. Crucially, they allowed the men to be separated from the women, children and elderly. Nearly all men taken from the base and the surroundings were summarily executed and buried in mass graves in the days that followed.

Just like the supreme court in the earlier case of Dutchbat interpreter Hasan Nuhanovic (IJT173), the court ruled that Dutch peacekeepers had effective control over the fenced off area, and concluded that they should have allowed the Muslim Bosnian men to stay on the base. On appeal, lawyers for the Mothers tried to expand that liability to all men in the group of up t0 30,000 refugees who had gathered around the compound after the enclave fell . The Dutch state tried to get the number down, arguing that even if the men would have been allowed to stay in the U.N. base, they would have been killed by Bosnian Serbs eventually.

Another number: 30 percent

The appeals court in the Netherlands on Tuesday issued a ground-breaking ruling confirming Dutch liability for the deaths of the over 300 men on the compound. It ruled the state must pay damages for those deaths but it also added a new baffling number: 30 percent.

Instead of being 100 percent liable for not preventing the deaths of these men and boys the Netherlands authorities are only 30 percent liable, according to the panel of three . Why? Because the appeals judges estimated the odds at 70 percent that the Bosnian Serbs could have blocked access to water and food for the men on the compound anyway or would have dragged the victims from the base and killed them regardless of what the Dutch soldiers did. The chance that they would have survived if the Dutch had kept them on the base was 30 percent, said the court, thus the state is 30 percent liable, because the Dutch state failed to protect that roughly one-third chance.

But how does a court calculate such a chance? Did they calculate probabilities like insurance companies? How do you calculate the likelihood of getting killed under such circumstances?

This was not clear from the summary in court and a full reading of the verdict doesn't offer much insight either. It seems to consider three possible scenarios if the men would have been allowed to stay at the Dutchbat compound with the peacekeepers: 1 they would have been dragged off by Bosnian Serbs by force and killed anyway; 2 Bosnian Serbs would have blocked water and food from coming though thus forcing the situation to become untenable and forcing the Dutch to agree to the evacuation at later stage; and 3 that the Bosnian Serbs would have allowed to leave them unharmed.

After describing the scenarios, the court simply concludes that “weighing all arguments against each other the appeals court considers the chance that the men would have been able to escape inhumane treatment and executions by the Bosnian Serbs if (the male refugees) would have been allowed to stay on the U.N. compound at 30 percent”.

“By not giving the men … the choice to stay on the compound on July 13, 1995 the state by way of Dutchbat has taken that chance from them,” it added.

The coming manoeuvres in this case will also be about numbers, numbers such as the height of the damages the Dutch state should pay, a torturous process where for each victim the lawyers will make a calculation on lost income, life expectancy and number of dependents to come to a figure for total damage. And then take 30 percent of that and demand it from the Dutch state.

Again the Srebrenica massacre will reduced to numbers.


Related articles

ICTY and MICT president Judge Theodor Meron speaks to IJT (Photo: Stephanie van den Berg)
08 July 2015

IJT 185 is a free special issue to mark the 20th anniversary of the Srebrenica massacre. The murder of some 8,000 Bosnian Muslim men and boys is the only atrocity in post-WWII Europe that was officially labeled a genocide by two international courts, and it has helped shape international laws on genocide. For this issue, International Criminal Tribunal for the former Yugoslavia (ICTY) president Theodor Meron answers questions about handing over the court's remaining functions to the Mechanism for International Criminal Tribunals (MICT), where he also serves as president.

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07 July 2015 by Marco Gerritsen and Simon van der Sluijs

In this article, Marco Gerritsen and Simon van der Sluijs of law firm Van Diepen Van der Kroef Advocaten, leading counsel for the Mothers of Srebrenica, give an inside view on their clients' proceedings against the Dutch State.

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

23 July 2014 by IJT

In a landmark verdict, a Dutch court ruled this week that The Netherlands is responsible for 300 of the more than 8,000 deaths in the 1995 Srebrenica massacre, because its peacekeeping force – Dutchbat – failed to protect them. 

Entrance of Dutchbat compound in Potocari near Srebrenica. Copyright Joost van Egmond
13 January 2015 by Joost van Egmond, Sarajevo (Bosnia and Herzegovina)

Over a year after the highest court in the Netherlands held the Dutch state responsible for the fate of his father and brother, who were killed after the fall of the Bosnian town of Srebrenica in 1995, Hasan Nuhanovic still awaits satisfactory compensation. His case is often cited as crucial for damages claims to come, for Srebrenica and beyond.