Dutch court upholds U.N. immunity in genocide case

Plaintiffs plan to appeal, saying peacekeepers failed to protect their relatives in the 1995 Srebrenica massacre.

By , Contributor to The Christian Science Monitor

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    Bosnian people stood near the marble stone engraved with the names of Srebrenica victims at the Memorial Center of Potocari, northeast of Sarajevo.
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Is the United Nations responsible if its peacekeepers fail to prevent genocide? No, decided a Dutch court Thursday in a case likely to be appealed.

At issue is Europe's only genocide since World War II: the killing of some 8,000 Muslims in Srebrenica, Bosnia, 13 years ago this week. Last month, 6,000 plaintiffs filed a civil suit against the UN and the Dutch government in The Hague District Court. They argued that Dutch peacekeepers failed to protect their relatives in the 1995 massacre, which took place in a UN-declared safe zone.

The Hague District Court said the UN's immunity – written into its founding charter – means it cannot be held liable in any country's national court.

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"The court's inquiry into a possible conflict between the absolute immunity valid in international law of the U.N. and other standards of international law does not lead to an exception to this immunity," the judges wrote in their ruling.

Axel Hagedorn, a lawyer for the plaintiffs, said he would appeal the decision. The case could go to the European Court of Human Rights. "The court ruled that the UN has immunity, even if a genocide has happened, and that is in our opinion exactly what you can't accept," he said.

Hagedorn said the court should have overruled UN immunity because of the extreme circumstances of the case – the first genocide in Europe since the Genocide Convention was drawn up in the aftermath of the Holocaust. "You have to change the jurisdiction on this, because otherwise you accept genocide."

If the decision were overturned on appeal, that could open the door for future court challenges to UN peacekeeping missions and the awarding of financial damages – throwing into question the institution's viability, say experts.

"It is a very important case because of the principle. It would make things in the future quite difficult," says Jan Willem Honig, a professor at the Swedish National Defense College and author of "Srebrenica: Record of a War Crime." "It revolves around whether the Dutch and the UN had a duty to do more."

About 400 Dutch peacekeepers working under a UN mandate were charged with guarding Srebrenica in the summer of 1995. The town – declared a "safe zone" by the UN Security Council – was a destination for civilians fleeing conflict in surrounding areas. The enclave fell to Bosnian Serb forces in July 1995 with minimal resistance from the Dutch.

International courts – both the International Criminal Tribunal for the Former Yugoslavia (ICTY) and the International Court of Justice (ICJ) – have characterized the incident as genocide. Two former Bosnian Serb military commanders have been convicted of war crimes for their involvement in Srebrenica, but the accused architects of the Bosnian Serb ethnic-cleansing strategy – Ratko Mladic and Radovan Karadzic – remain at large.

An independent report in 2002 by the Netherlands Institute for War Documentation faulted the UN for designating Srebrenica a "safe haven" for Bosnian refugees, but not defining the term.

"What protection actually meant was open for debate, the Dutch tended to go for the narrow interpretation of deterring through presence," Dr. Honig said. "Did the Dutch know that genocide could be committed?"

The UN did not appear in court for a preliminary hearing June 18, and officials did not respond to requests for comment. Bert-Jan Houtzagers, an attorney representing the Dutch government, declined comment, issuing a written statement: "The Netherlands and the United Nations are firmly of the opinion that the court has no jurisdiction. On the basis of international law, the United Nations enjoys in the territory of its Members such privileges and immunities as are necessary for the fulfillment of its purposes."

But in an interview before the ruling, Hagedorn, the plaintiffs' lawyer, said political pressure should not be allowed to interfere with justice. "If you do not even allow [the case to go to court], you are saying that you have international organization that is above the law. Genocide does not fall under immunity."

Associated Press material was used.

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