In a remarkable and unexpected ruling, a Dutch Court held yesterday that the Dutch state is responsible for the deaths of three persons in the Srebrenica genocide. This is the first time that a state is held responsible for the conduct of its troops during peacekeeping missions that operated under UN authority. As Michael Bochenek, Amnesty International’s Director of Law and Policy, puts it:
Up to now, states have behaved as if their peacekeepers operate with absolute immunity. This decision establishes that no international peacekeeper can avoid responsibility for crimes under international law.
Some fear that the judgment may discourage states from partaking in future peacekeeping operations. Human rights organizations have quickly dismissed such concerns. Amnesty International argues that states are already aware that their troops must abide by the rules of international law during peacekeeping operations and Human Rights Watch even argues that the ruling gives states incentives to “carry out peacekeeping actions more forcefully.” While I mostly welcome the decision (for reasons explained below) I think this latter statement reflects wishful thinking and the first an underappreciation of the effect of demonstration decisions. It is one thing to have a theoretical understanding of the possibility of legal responsibility but quite another to have an actual case, which can be used in future cases and in political debates.
The legal circumstances of the judgment are exceptional. The case concerns individuals who were at the Dutchbat base but were turned over to general Mladic after it should have been apparent to the Dutch unit that these individuals would be in serious risk. The individuals in the case are an electrician who worked for the Dutch but lacked a UN pass. The second case concerns the family of an interpreter who worked for the Dutch. The Dutch argued that only those with a UN pass could stay at the base and they sent away all men who didn’t meet this criterium. All men who were sent away from the Dutch base were killed. All those who were allowed to stay behind survived. (Those interested should read Charli Carpenter’s excellent article in International Organization about the fallacy of protecting women and children first.)
Legally, the decision turned on who had effective control over the operation. Previous cases failed to overcome the argument that in UN peacekeeping operations under UN command the Dutch state had no effective control over the operation. This may still leave individual peacekeepers liable under international criminal law (which is a different case still in the court system) but the Dutch government argued and the courts agreed that the state itself could not be held responsible. Nevertheless, the appeal court found that at the time the men were forced to leave the Dutch base, the Dutch government did share control of the mission with the UN. As the Court wrote (translated from the Dutch judgment as I have not seen an English translation):
After July 11, 1995 the mission to protect Srebrenica had failed. Srebrenica had fallen that day and there was no possibility that Dutchbat or UNPROFOR would continue or renew the mission.
The court then cites ample evidence that the instructions on how to behave during this period of withdrawal came partially (and even largely) from the Dutch military and the ministry of defense rather than from the UN, thus establishing partial responsibility.
These circumstances are unlikely to be repeated in many other cases. In this sense, the legal utility of the case may be limited. On the other hand, most new precedent starts with narrowly defined circumstances and then expand to a broader scope, and it is certainly a wise strategy for NGOs to highlight a more general interpretation. Yet, there are ample opportunities for future courts to find that a specific case differs from this precedent and that a state is not responsible for the misconduct of its peacekeepers. Moreover, it is difficult to see how this ruling gives state actors incentives to take more control over peacekeeping missions, as Human Rights Watch argues. Indeed, states may do the opposite, channeling all communications through the UN in order to avoid a situation where they have “effective control” over a mission and can thus be held responsible. Another worry is that the ruling may discourage peacekeeping participation from countries with a strong legal system even further. Finally, the ruling gives opponents of peacekeeping some political ammunition for opposing missions. “We put our soldiers at risk for someone else’s problems and then we’ll be sued if things go wrong” could be an effective political argument.
These are genuine concerns but there are also very important favorable implications. From a justice perspective, it is high time that the victims of a genocide can hold not just the perpetrators accountable but also those who promised to protect them but failed to deliver. There is little doubt in my mind that there would have been fewer people killed in Srebrenica if muslim men had not believed that it was indeed a safe zone. The victims of Srebrenica have rightly been frustrated with the attempts by the Dutch government to hide behind the UN even when there is ample evidence that government decisions contributed to the Srebrenica disaster. In general, we believe that legal accountability leads to better behavior and I see little evidence that peacekeeping missions should be different. As it stands, this legal accountability only applies to major violations of international war crimes and humanitarian law. The world does not need more peacekeeping missions where the participants have so little invested that they are not willing to be legally responsible for facilitating genocide.