Advocate General: Court of Appeal's judgment holding the Netherlands partially liable for losses suffered by Mothers of Srebrenica cannot be upheld

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Den Haag, 01 februari 2019

The Hague Court of Appeal’s judgment of 17 November 2017, in which it ruled that the Netherlands was partially liable for the losses suffered by the relatives of more than 300 Muslim men, cannot be upheld. This is Advocate General Vlas’ advice to the Supreme Court in an advisory opinion published today.

The case concerns the question as to whether Dutchbat (and thus the State) acted wrongfully during the evacuation of the more than 300 Muslim men who had sought shelter in the Dutch compound after the fall of the Srebrenica enclave on 11 July 1995. The men were made to leave the Dutchbat compound on 12 and 13 July 1995. During the evacuation, Dutchbat tried to minimise the chaos at the compound by forming groups and creating a kind of funnel consisting of vehicles and Dutchbat personnel, in an attempt to ensure an orderly evacuation. While the refugees were passing through that funnel, the Bosnian Serbs picked out the male refugees and later killed them.

The Hague Court of Appeal held that the State acted wrongfully by facilitating the separation of the male refugees by the Bosnian Serbs by allowing the refugees to proceed to the buses in groups and through the funnel. The Court of Appeal also held that the State acted wrongfully by not offering the male refugees who were in the compound on 13 July 1995 the option of staying in the compound, thus denying them a 30% chance of avoiding being subjected to inhumane treatment and executed by the Bosnian Serbs. Having the men leave the compound denied them a chance of survival. The Court of Appeal ruled that the State was liable for 30% of the losses suffered by the relatives.

Both the State and the Mothers of Srebrenica foundation lodged an appeal in cassation against the judgment. 

In his advisory opinion, the Advocate General discusses the complaints in cassation in detail. In the Advocate General’s view, in assessing whether Dutchbat acted wrongfully it is important to consider that Dutchbat was operating in a war situation and had to take decisions under enormous pressure and under threat of armed violence. In the Advocate General’s view, in deciding that Dutchbat acted wrongfully by forming a funnel through which to move the refugees to the buses during the evacuation, the Court of Appeal delivered an irrational judgment (onbegrijpelijk oordeel). According to the Advocate General, it cannot be said that in the circumstances at the compound cited by the Court of Appeal Dutchbat necessarily acted wrongfully in its choice between two evils: either facilitating the separation of the men or allowing a chaotic evacuation. The situation would have been different only if Dutchbat had known or should have known that the men were certain to be killed or treated inhumanely. This was not the case. The Advocate General is of the opinion that given the war situation the court should not be led by the consideration that choosing the other option might have led to a better outcome.

The Advocate General has established that it follows from the Court of Appeal’s judgment that even if the male refugees had been able to stay at the compound longer, they would still have faced a very high risk of being killed or treated inhumanely. Moreover, the men would have remained in the compound in dire conditions, while on 13 July 1995 it was not yet clear when Dutchbat themselves would leave, and supply lines were being blocked. In the Advocate General’s view, the Court of Appeal did not sufficiently substantiate why it was not reasonable for Dutchbat – after weighing the real risks of both courses of action, i.e. evacuating or remaining at the compound for a longer period, and given the war situation – to decide to evacuate the men.

The Advocate General also recommends that the cassation complaints of the Mothers of Srebrenica be dismissed.

The judgment of the Supreme Court is scheduled for april 19 2019.

The Advocate General’s advisory opinion is an independent recommendation to the Supreme Court. It is up to the Supreme Court to decide whether or not to follow that advice. The Advocate General is a member of the Procurator General’s Office at the Supreme Court, which is an autonomous and independent part of the judiciary.

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