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Netherlands: Supreme Court Holds U.N. Cannot Be Sued in Bosnia Massacre Case

(Apr. 19, 2012) The Supreme Court of the Netherlands (Hoge Raad der Nederlanden), in a ruling issued on April 13, 2012, held that the United Nations cannot be sued for its failure to protect Bosnian civilian men in Srebenica, Bosnia-Herzegovina, during a massacre carried out by Serbian forces in July 1995. Thus, “[t]he ruling essentially held that the UN is immune from prosecution in Dutch courts.” (Matthew Pomy, Netherlands High Court Rules UN Immune from Suit, PAPER CHASE NEWSBURST (Apr. 13, 2012); LJN: BW1999, Hoge Raad [Supreme Court], 10/04437 (Apr. 13, 2012), de Rechtspraak [website of the Dutch Judiciary and the Supreme Court of the Netherlands].)

At the time of the massacre, “tens of thousands of civilians had taken refuge from earlier Serb offensives in north-eastern Bosnia” and “were under the protection of about 600 lightly armed Dutch infantry forces,” who were U.N. peacekeepers in the Srebenica enclave, which had been declared a U.N. Safe Area two years earlier. (Timeline: Siege of Srebrenica, BBC NEWS (June 9, 2005).)

The recent suit was brought against the U.N. by the Mothers of Srebenica, who claimed that the agency was liable for failing to protect the civilians. The U.N. declared it was immune from prosecution, based on the Convention on the Privileges and Immunities of the United Nations. (Pomy, supra.) Article 2, section 2, of the Convention states:

The United Nations, its property and assets wherever located and by whomsoever held, shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity. It is, however, understood that no waiver of immunity shall extend to any measure of execution. (Convention on the Privileges and Immunities of the United Nations (adopted on Feb. 13, 1946), United Nations Office at Geneva website.)

The Dutch Supreme Court decision upheld a ruling in favor of the U.N. that had been rendered by the District Court in The Hague. The Mothers of Srebrenica reportedly plan to appeal their case to the European Court of Human Rights. (Pomy, supra.)

By contrast, in July 2011, the District Court in The Hague had held the Netherlands liable for the death of three Bosnian Muslim men (“Bosniaks”) during the Srebenica massacre and mandated compensation of the men's families. The Dutch battalion in Srebenica had forced the three men, who were working for the battalion, to leave the U.N. Safe Area and they were subsequently beaten and killed by the Serb forces. (Id.; Zach Zagger, Dutch Appeals Court Holds State Liable for Deaths of 3 Bosniaks at Srebrenica, PAPER CHASE NEWSBURST (July 5, 2011); LJN: BR0132, Gerechtshof 's-Gravenhage [District Court in The Hague], 200.020.173/01 (July 5, 2011), de Rechtspraak.)