By Ian Leist QC | Thu., September 1, 3:57 PM | Comments ( 0 )
Shoes are piled up as part of the "8372..." project in central Istanbul 09/07/2011 REUTERS/Murad Sezer
President Tadic of Serbia announced the arrest of Goran Hazic on July 20 2011. He will now join Radovan Karadic and Ratko Mladic at the Hague for trial. His alleged crimes include the massacre of 300 men at Vulcovar in 1991 and the deportation thereafter of some 20,000 people from the town as part of a campaign orchestrated in Belgrade by Slobodan Milosovic.
This is more good news for Bosnian Muslims, and further evidence of Serbia’s decision to comply with European standards of justice as they seek to advance their entry into the EU.
There are many Bosnian Muslims who, realistically speaking, are unlikely to obtain justice for individual crimes committed against them or their families, despite much laudable work by the local justice system. It would be wrong to discount the social and political problems that the region is still facing as a consequence and which will not automatically disappear with entry into the EU. There will be those, for example, who will continue to believe the displacement of the Muslim community and the recognition of the Republic of Serpska gave partial success to Serbia’s war aims,
If the International Criminal Tribunal for the former Yugoslavia (ICTY) finds the defendants guilty of genocide, it is to be hoped that the Bosnian Muslim community will be able to embrace the verdicts, not only as justice for them as a people, but also as a remedy for their own personal grievances.
On July 5 2011, at The Hague, judgment was given for the families of a group of victims of Srebrenica in a civil action against the Dutch state. It is difficult not to conclude that the delay in bringing the war criminals to justice has contributed to the decision by individuals to instigate private law civil proceedings as an alternative. In fact, the families had been primarily concerned to establish the truth about why Ibro, Nasiha and Muhamed Nuhanovic and Rizo Mustafic were sent out from the compound to their deaths when the United Nations had promised to ensure their safety.
The legal argument during the appeal concerned the division of responsibility between the United Nations and the national state and the principle of UN and state immunity in civil proceedings or, as Lord Bingham put it in Jones v Kingdom of Saudia Arabia (2006 UKHL26).
“The balance currently struck in international law between the condemnation of … an international crime against humanity and the principle that states must treat each other as equals not to be subjected to each other's jurisdiction."
The UN Charter by Article 105(3) has historically been regarded as embodying a standard of absolute procedural immunity, insofar as “international organizations can only act within the scope of their functional personality.”
The plaintiffs' lawyer Liesbeth Zegveld argued that the Dutch government and the Dutch command within UNPROFOR were responsible for the gross negligence shown by Dutch troops, who omitted to safeguard members of the civilian population under their protection.
“The court considers that Dutchbat should not have sent the electrician [Mustafic] and the brother of the interpreter [Nuhanovic] from the compound and should have foreseen that the father would follow the son,” states a summary of the judgment released by the court.
“The main victory is the facts that have been established,” she said “that victims were expelled from the United Nations premises; that the Dutch military should have known and actually knew that the three Bosniak men would face certain death if they were to be expelled, and that the Dutch government intervened in the United Nations command structure – these are all factual determinations that cannot be affected by any appeal in the future.”
Previously in 2008, the Dutch state argued that because its troops were serving under a U.N. mandate during the Bosnian war, the Netherlands could not be held responsible for its actions. But on appeal, the judges found that after the fall of Srebrenica, Dutch military and political leaders were in "effective control" of their troops.
The court stressed that the judgment “only refers to the specific situation of these individual cases.” The court ruled that, although Dutchbat was commanded by the UN, after the fall of Srebrenica “a special situation” arose in which the Dutch government took effective control of Dutchbat and the evacuation of refugees, states the summary. “Given this involvement, the court considers the state responsible for the actions of Dutchbat soldiers against the aforementioned Muslim men.”
The landmark judgment could lead to an official criminal investigation into the actions of Dutch battalion commanders.
The Dutch Appeals Court is one of few judicial institutions that have evaluated the scope of the UN's immunity on the basis of the international law obligations embodied in the UN Convention and Charter. In fact, the court upheld the submission that the UN - the only international body authorized to exercise ‘far reaching powers’ in the maintenance or restoration of peace and security - would be prevented from fulfilling its purpose by opportunistic or frivolous litigation if it were afforded anything less that absolute immunity.
Perhaps significantly, the Appeals Court observed that the UN had neither committed not assisted in the commission of the Srebrenica genocide, and that, although the submissions that the UN had omitted to prevent the genocide were 'serious', setting aside the immunity on this basis might “be latched onto too easily [by other courts], which could lead to misuse.”
The events of July 1995 became a permanent stain on the reputation of the United Nations and the Dutch government. In 1999, Kofi Annan stated that “the tragedy of Srebrenica will haunt our history forever.” In 2002 the entire Dutch Cabinet resigned over the events in Srebrenica. It is to be noted subsequently that the Netherlands has been outspoken in its insistence that Serbia delivered up Mladic and made rule of law improvements before progress into the EU was feasible. With the arrest of Hadzic, two suspects have now been sent for trial within a short period.
At a memorial ceremony in July 2010, the current Secretary-General, Ban Ki-Moon, acknowledged that “the United Nations made serious errors of judgment in Srebrenica, which weigh heavy on our collective memory and conscience.”
Heavy enough to waive immunity and compensate victims?
The principle of immunity continues to bar civil claims by victims of international crimes and remains largely unchanged for states brought before foreign courts in a civil capacity. In the House of Lords decision in Jones, Lord Bingham stated
“… there is no evidence that states have recognized or given effect to an international law obligation to exercise universal jurisdiction over claims arising from alleged breaches of peremptory norms of international law, nor is there any consensus of judicial and learned opinion that they should. This is significant, since these are sources of international law. But this lack of evidence is not neutral: since the rule on immunity is well understood and established and no relevant exception is generally accepted, the rule prevails.”
The House of Lords relied on the decision of the European Court in Al-adsani (2001 34 EHRR273). The 9-8 majority decision demonstrated that the European Court could not find, despite the growing acceptance of the overriding importance of the universal prohibition on the use of torture, that it displaced the long standing rule that a state enjoyed immunity from civil actions outside the forum state.
The importance of state sovereignty as an absolute, inflexible rule of law in generating decades of peace and security should not be underestimated. Academics frequently call sovereignty the “grundnorm of international law“ while others refer to human rights as “a language of moral intervention” for this very same reason.
These cases continue to demonstrate that the concept of the Westphalian state fits uneasily into a human rights scheme designed to protect individuals regardless of their ethnicity or nationality. Globalization, as nations move from the principles of the ‘tribal collective’ to an ‘international community of free individuals’, only highlights the shift from the state to the individual, and the problems of migration, statelessness and genocide have increased the extent to which states have assumed responsibility for the human rights of foreigners.
A delicate balance appears, therefore, to have been struck by the Dutch appeal court decision. Arguably the result of some ‘creative’ fact finding, the judgment keeps in step with both European jurisprudence and the political and moral consensus in the Netherlands as the country tries to accept some responsibility over the events at Srebrnica.
The Netherlands Supreme Court is set to reach a further decision on the immunity issue early next year, in the Mothers of Srebrenica case.
At the heart of these cases lies the allegation that the UN and Dutchbat failed to see through their mission to establish a safe haven at Srebrinca, and by encouraging the gathering of Bosnian Muslims, had a causative impact on their massacre. The Dutch cases have all the hallmarks of reaching the European Court in due course.
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