Supreme Court of Cassation of The Netherlands Case number : 10/04437

Cause list date : 7 July 2011

REPLY

Concerning:

the Association Mothers of Srebrenica and others / The State of the Netherlands and the UN

*****

In response to the Explanatory Memorandum of 17 June 2011 of the State of the Netherlands

the Association and others reply as follows.

1. In its Introduction the State of the Netherlands (hereinafter: State) erroneously asserts that

the Association Mothers of Srebrenica and others (hereinafter: Association and others) must

have presented the facts incorrectly and one-sidedly and that its arguments did not rest on

established facts.

The Association and others refer first to the doctrine of assumed factual basis, whereby one

must proceed on the ground of the facts presented by the Association and others. Secondly,

the Association and others point out that all the facts presented by it are drawn from the

official reports commissioned by the State, the French Parliament and the UN, as well as

from various judgments of, inter alia, the International Court of Justice and the

International Criminal Tribunal for the Former Yugoslavia (ICTY). Citations have been given

for all instances where facts have been established by fact-finding agencies. As the State

has failed to prove its charge that incorrect facts have been presented it would appear that

the State is consciously attempting to create a false view of the facts.

2. In its Introduction the State presents as central the charge of failure to prevent genocide.

The Association and others charges the State, and the UN even more, that they in breach of

their undertaking did not protect the citizens against war crimes, rape, plunder and

mistreatment.1 The Association and others further asserted that Dutchbat actively

participated in the deportation. With reference to that the State avails itself under point

1.8 of euphemistic terms such as ‘evacuation’ and of ‘in orderly fashion’ of the passage of

the refugees to the buses. In that regard the Association and others point out that the ICTY

1 See, the originating writ of summons under numbers 310-337 and 376-417 for the summary of complaints

addressed to the State and the UN

has held that it must be clear to everyone what actually then happened in Srebrenica.2

Dutchbat was totally aware of the impending mass murder and of the fact that deportation

was involved.3 The State cites in this regard Deputy Battalion Commander of Dutchbat

Franken, at least as reported in the NIOD Report. In fact, Franken confirmed before the

ICTY that there had been co-operation in ‘a planned deportation with the approval of the

UN’, in the knowledge that the men would thus be handed over to ‘their butchers’.4

3. The State further presents it as though Dutchbat were surprised and overwhelmed by the

events, including the genocide. That is incorrect. As was stated in the originating writ of

summons and the statement of appeal, the threat of a genocide was widely known. The

prevention of genocide was the raison d’être of the mission.5 The mandate was for the

protection of the Safe Area and its population.6 Furthermore, the tragic events could only

have happened because Dutchbat and the UN offered absolutely no resistance to the

Bosnian Serbs. Even the UN subsequently drew the conclusion7 and stated that the result

could possibly have been different if resistance had been offered.8 The UN itself concluded9

that the Bosnian Serbs did not originally intend to take the entire Safe Area but first moved

to that resolve when no resistance was offered. From the first attack on the Safe Area on 3

June 1995 until the fall on 11 July 1995 nothing was done by Dutchbat or the UN, and they

laid priority on their own situations.10

4. The State also now erroneously presents the case as though everything was played out

beyond the sight of Dutchbat and the UN. The originating writ of summons gave extensive

coverage to the horrors to which Dutchbat in any case was witness and that it wrongly did

not report.11 Nothing was done even in the days following the fall when it was then that the

2 See, the Motion of Appeal in Cassation page 7, note 18 and the references given there to the fact-finding

agencies 3 See, inter alia, numbers 253 through 266 of the originating writ of summons, as well as the Motion of

Appeal in Cassation page 7, note 19 and the references made there 4 To be seen, inter alia, on Youtube: http://www.youtube.com/watch?v=EgQQI-FcPrU&feature=related, in

the fragment from 1 minute 35 to 2 minutes 59, containing the commentary of the international law expert,

H. Verrijn Stuart, who also stated that there was knowledge at the deportation and at the separation of the

men and the women by Dutchbat of the subsequent genocide. The transcript is located at

http://www.icty.org/x/cases/krstic/trans/en/000404it.htm, p. 2087 rule 10 – p. 2088 rule 9 5 See, inter alia, numbers 16 through 18, as well as 409 and 410 of the originating writ of summons, as well as

numbers 136-139 of the Statement of Appeal 6 See, the originating writ of summons under numbers 21-28 7 See, the originating writ of summons under number 324 8 See, the originating writ of summons under number 325 9 See, the originating writ of summons under number 324, with reference to the UN Report 10 See, the originating writ of summons under numbers 64-162 11 See, inter alia, the originating writ of summons, numbers 212-230 with regard to Dutchbat and numbers

231-272 with regard to other witnesses. Hundreds of citizens were murdered around the compound and in

the proximity of Dutchbat. See, further, numbers 329 through 335 of the originating writ of summons, with

reference to the UN Report

majority of the people were murdered. Under points 187 and 188 of the writ of summons at

first instance the Association and others referred to the Krstic Case and the NIOD report

where it was established that the core of these executions took place between 14 and 17

July 1995. Many executions followed in the weeks after 17 July 1995. Given the real and

foreseeable danger that the refugees ran, it was the responsibility of Dutchbat to sound the

alarm over the fate of these refugees and to take action. It is as certain as can be that this

alone would have saved the lives of many. In fact, Dutchbat reported nothing and took no

action.

5. The State under point 4 deals again with its obligation under international law to safeguard

the immunity of the UN. In so doing the State simply ignores the human rights that the

Association and others invoke. These human rights likewise have a component to be

protected under international law that is at least equal to the interests that the State says

it promotes. The State actually chooses for the most one-sided approach that is possible

regarding the immunity of the UN, without fulfilling its obligation to protect human rights.

6. The Association and others have already pointed out that under Article 103 of the UN

Charter immunity from jurisdiction is granted to the UN as an instrument for it to realise its

objectives (that are set out in Article 1 of the UN Charter), including the safeguarding of

human rights. It is precisely these human rights that now threaten to be subordinated to the

instrument. That is a corruption of the right to immunity from jurisdiction.

The extensive powers of the UN do not constitute a ground for justification for the absolute

immunity argued for by the State. The opposite is true. The greater the power, the greater

the need for a possible judicial supervision. That is the essence of human rights.

7. The State argues that the immunity of the UN must be absolute and the fact that Article 29

of the Convention has still not been fulfilled must remain without consequence. This

interpretation would lead to the conclusion that the UN could never be called to account

and that the right of access to justice would be permanently violated. The State is

apparently not uncomfortable with thus disavowing one of the fundamentals of the

constitutional state. That is explicable only in the light of the State’s own interest in this

case.

8. The objections that the State formulates under point 5 against the consequences of what it

sees as a restricted immunity are exclusively politically motivated. The possibility that the

conduct of the UN could be judicially reviewed ex post facto was provided for by the

founding member states of the UN and is a consequence of the obligation to provide access

to justice laid down in Article 29 of the Convention. The State in its argument ignores

entirely that the UN at any chosen moment can yet provide for the stipulated access to

justice.

9. Moreover, the absolute immunity argued for by the State ignores and is diametrically

opposed to the origins of the immunity of the UN, as the Association and others have set out

in the Explanatory Memorandum. The notion of absolute immunity is politically not legally

motivated.

10. Under point 6.3.8 the State asserts that the European Court of Human Rights in the cases of

Behrami and Saramati ruled that the conduct of the UN cannot be reviewed under the

European Convention for the Protection of Human Rights and Fundamental Freedoms

(hereinafter: ECHR). That is erroneous. The European Court of Human Rights in those cases,

to which the UN was not a party but where the conduct of the UN was attributable, ruled

that rationae personae cannot be reviewed by the European Court of Human Rights. The

European Court of Human Rights thus in those cases gave no ruling on the applicability of

the ECHR. The Netherlands court must apply the ECHR.

11. The State discusses under 6.4 the Case Waite & Kennedy and concludes under 6.4.7 that

without immunity there was a real risk that the UN would be unduly exposed to claims. A

similar exposure is provided for by Article 29 of the Convention and moreover by the

message of the European Court of Human Rights in the Case Waite & Kennedy: in the

absence of an effective access to justice the right of access to justice should prevail over

immunity from jurisdiction.

12. The State ascribes, moreover, too great a weight to consideration 70 of the European Court

of Human Rights in the Case Waite & Kennedy where it was considered that the employees

also had the option of suing an employment agency, besides ESA. The issue in that case was

of an entirely different order and the judgment rests upon different legal grounds.

Moreover, the UN and the State are not interchangeable with war criminals of the Serbian

State, in the relationship that a hiring employer has to a supplying employment agency.

What was determinative for the European Court of Human Rights was moreover the

existence of an effective legal access at ESA.

13. Under points 6.4.10 and 6.4.14 the State translates ‘material factor’ with ‘important, but

not conclusive’. This translation fails to do justice to the meaning. What is at issue is

‘important’ in the sense of ‘essential’, ‘material’ of ‘decisive’.12 The presence of an

12 See, Van Dale Dictionary Engels-Nederlands

effective access to justice was accordingly deemed conclusive by the European Court of

Human Rights.

14. Under point 6.4.21 the State presents the case as though having considered the complaint of

non-prevention of genocide the Court of Appeal had thus considered all other complaints.

That is erroneous. In addition to the complaint relating to genocide, the Association and

others has made other specific complaints against the UN and the State under points 310-

336 and 376-393 as well as 412-416 of the originating writ of summons. The relevant grounds

for appeal in cassation of the Association and others thus possess sufficient factual basis.

15. With regard to the preliminary questions the Association and others have referred to the

principle of effective legal remedy and to Article 47 Charter of Fundamental Rights of the

EU. Regarding Article 47 the State asserts under point 7 that in the present case the State

has no obligation of implementation under EU law and the appeal to Article 47 fails. This

assertion is erroneous, as is apparent from, inter alia, a recent publication13 that expounds

that Article 47 applies to all rights guaranteed by the law of the European Union. These

rights within the meaning of Article 47 can also arise under international law treaties to the

extent that such treaties bind the European Union,14 including the ECHR. Article 6 ECHR is a

part of the law of the European Union.

16. This case surpasses in importance the more usual issues that are presented to this Court.

This case concerns the nature and consequences of exceptionally serious facts that

constitute a dark chapter in the history of The Netherlands and of the UN. So many failings

were committed then by the UN and the State, with all their consequences, that the victims

must be able to call all legal responsibilities to account. There is no justification in this case

in placing the UN above the law and to deny to the Association and others the right of

access to justice. This case will demonstrate the true worth of fundamental human rights,

at the moment that they are not seen as acceptable for political reasons. This case provides

the litmus test.

This case is prepared by:

M.R. Gerritsen

Dr. A. Hagedorn

J. Staab

S.A. van der Sluijs

13 H.D. Jarass, Bedeutung der EU-Rechtsschutzgewährleistung für nationale und EU-Gerichte, Neue Juristische

Wochenschrift 2011, pp. 1393-1398 14 Jarass, loc. cit., p. 1394, under II, 1