In July 1995 during the Bosnian war, the world watched in disbelief as the Srebrenica massacre occurred. Thousands of fleeing citizens had sought shelter in the United Nations compound when Bosnian Serb forces commanded by General Ratko Mladic overran the Srebrenica area.
In a few days, these forces outnumbered the Dutch peacekeepers, known as the Dutchbat, who bowed to pressure from Mladic’s troops and forced thousands of Muslim families out of the compound. The peacekeepers were under the command of a UN Protection Force deployed after the collapse of the former Yugoslavia.
Then the atrocity happened. The Bosnian Serb forces sorted the Muslims by gender, taking with them men and boys, whom they killed and buried in hastily dug mass graves. By the time they were done, approximately 8,000 people had lost their lives.
To much disbelief, the Dutch military did little or nothing to stop the massacre, given that it occurred under its watch.
Almost two decades later, and after a protracted long court battle, the Netherlands has been ordered to pay compensation for the deaths of 300 Bosnian Muslims in the massacre.
In this landmark ruling, the key question being asked is if and how this decision will affect other peacekeeping missions around the world.
In the ruling by presiding Judge Larissa Alwin of the Dutch Supreme Court last month, the Netherlands was held liable for the deaths of the 300 people who were expelled by Dutch soldiers from the UN compound, straight into the arms of Bosnian Serb forces.
“Dutchbat should have taken into account the possibility that these men would be the victims of genocide, and that it can be said with sufficient certainty, that had the Dutchbat allowed them to stay in the compound, these men would have remained alive,” said the judge.
But the interesting twist in the judgment is that it may have set a precedent that countries that provide troops for UN missions can be held responsible for their conduct.
In the ruling, the Dutch court held that there is a shared responsibility between the UN and the troop-contributing country. As long as the state has “effective control” over its troops, it may still be held responsible for the conduct of its forces even if they are still under the control of the UN.
“This is an historic ruling because it establishes that countries involved in UN missions can be found legally responsible for crimes, despite the UN’s far-reaching immunity from prosecution. People participating in UN missions are not always covered by the UN flag,” said human rights lawyer Liesbeth Zegveld, who represented the Bosnian families.
The Dutch court, however, restricted the liability to the victims within the UN compound where the massacres occurred and not those who were killed while fleeing Srebrenica.
The ruling could potentially open a floodgate of lawsuits against UN peacekeeping missions, especially in Africa, considering the failings of a number of them in the region.
In some missions, the UN peacekeepers have either abandoned the people they were supposed to protect or failed to act decisively to prevent deaths and massacres.
For example, in April 1994 in Rwanda during the genocide against the Tutsis, UN peacekeepers from Belgium withdrew from their military base in ETO Kicukiro, allowing the Interahamwe militia to massacre 5,000 Tutsis who had sought refuge in the UN camp.
In the Democratic Republic of Congo, Monusco, the UN contingent there, has been accused of laxity and failing to protect hapless citizens by collaborating with leaders of the Democratic Forces for the Liberation of Rwanda (FDLR), who have been accused of harming civilians.
In April this year too, hundreds of women and children were attacked, and at least 48 died in a UN compound in Bor in the ongoing South Sudan conflict.
The attack occurred after a mob rampaged through the UN site. The UN Security Council met to address the attack and warned that the action could “constitute a war crime.” In the incident, the UN peacekeepers working at the base were from India, Nepal and South Korea.
So why is the ruling at the Dutch Supreme Court an important precedent? At what point can one sue the country that provides the peacekeepers? How culpable are these countries, given that their soldiers serve under the UN mandate which claims immunity from lawsuits?
Continuing cases on questions of UN immunity from civil law suits are likely to be reinforced. The most recent suit is the ground breaking claim filed in the US against the UN Stabilisation Mission in Haiti (MINUSTAH) for allegedly introducing cholera into the country, infecting over 450,000 and killing over 8,000 people.
The ruling also means that it is important for contributing countries to the UN peacekeeping missions to honour their mandate and shoulder the heavy responsibility that comes with it.
East African Law Society chairman James Aggrey Mwamu said the ruling defines the boundaries where nations can be engaged and held responsible.
“The soldiers are under the international community, which has rules on combat and behaviour. Therefore, the ruling imposes discipline on other nations to take care of their soldiers,” said Mr Mwamu. “States and international organisations should bear responsibility for the violations of international law committed by their organs while serving under an international mandate like the UN peacekeeping missions.”
Mr Mwamu added that under the international law, investigations are usually done and individual soldiers are identified and punished because criminal liability is not delegated.
“The particular soldiers are singled out for punishment. Nations only bear responsibility when they are engaged in cover-ups or when they fail to investigate or if they fail to carry out punishment as required by international law,” he said.
The Netherlands case could also be used as a precedent to sue the Indian, Nepalese and South Korean government, whose soldiers failed the South Sudanese people during the April Bor massacre; Rwandans can sue over the genocide and many other atrocities committed under the UN peacekeepers’ watch.
Mr Mwamu said that the victims can sue these governments for negligence unless there is a good explanation as to why they did not protect civilians, which is their primary duty.
But reacting to the ruling, the UN noted that it is too early to tell whether there will be any implications for international peacekeeping missions in future.
However, analysts said the ruling could cause states to be reluctant to participate in foreign military operations for fear of being held responsible for situations that get out of control.
In an interview with German TV station, Andreas von Arnauld, a professor of international law at Kiel University in Germany said that there are legal accountability black holes surrounding UN peacekeeping missions.
“It concerns first of all difficult and entangled questions on attribution of conduct especially on who decided what, or who is responsible for what. We also have the UN immunity from national domestic courts, and we have no legal or institutional possibility to challenge the UN or to hold them liable at the UN level. This exposes the contributing nations to lawsuits,” he said.
By Allan Olingo and Trevor Analo