The Pretoria-based Institute for Security Studies describes as “aptly a watershed ruling” a Dutch court’s decision that found the Dutch state responsible for the deaths of three Bosnian Muslim men at Srebrenica during the Bosnian war in 1995. It adds the ruling has implications for all actors in UN peacekeeping, especially for complex peacekeeping within Africa, “where impunity and non-accountability are rife in violent armed conflicts and post-conflict peacekeeping.”
In the ruling on Tuesday, the court in The Hague stated that ‘…the Dutch state is responsible for the death of these men because Dutchbat (the UN Dutch battalion) should not have handed them over’. As a result, the court argued that the Dutch state acted illegally and was responsible for the deaths of the three Bosnian Muslim men who were among the thousands sheltering in the UN-declared ‘safe area’ of Srebrenica.
The Dutch government has defended itself in several lawsuits over the massacre by taking the position that the UN failed to provide its troops with the requisite air support that would have enabled the Dutch battalion to defend the group. In the words of the Dutch government, the UN abandoned the Dutch battalion, the ISS’ Senior Research Fellow, Peace Missions Programme, Festus B. Aboagye, writes.
“It goes without saying that the Serbian leaders (political and military) also bear the greatest responsibility for the actual massacres and are accountable under international law. This explains the trial of Slobodan Milosevic, former President of Serbia and Yugoslavia, and General Ratko Mladic (pictured), charged with genocide and crimes against humanity by the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague,” Aboagye argues.
“In this case, the first implication of the ruling is for the Dutch state, which is likely to face a floodgate of lawsuits (class actions) on behalf of the remaining thousands of victims of the Srebrenica massacres. Does this mean that there is no merit in the argument of the Dutch state regarding the responsibility of the UN? By no means. As the authority that mandated the deployment of the United Nations Protection Force (UNPROFOR), represented by the Dutch battalion, the UN has a fundamental case to answer.
“The case to be answered by the UN lies in the mandate of UNPROFOR that was initially established in Croatia ‘to ensure demilitarisation of designated areas’ and later extended to Bosnia and Herzegovina ‘to support the delivery of humanitarian relief, monitor ‘no fly zones’ and ‘safe areas’.’ The mandate was also later extended to the former Yugoslav Republic of Macedonia for preventive monitoring in border areas.
“Even though the UNPROFOR mandate was established before the seminal report by Lakhdar Brahimi (2000) on the weaknesses of UN peacekeeping, the Security Council then ought to have appreciated the fact that the provisions of International Humanitarian Law that informs the military doctrine of ‘safe areas’ essentially is about ‘protection of civilians’ (PoC). PoC operations, like those for ‘no fly zones and humanitarian interventions, entail military security operations endowed with comparable means, resources and capabilities.
“The reality is that the Dutch battalion did not possess such military capabilities, including combat enablers, against the formidable capabilities of the units of General Ratko Mladic’s Army of Republika Srpska (VRS). In other words, the UN failed in ensuring that it lived up to international and local expectations that the forces it had deployed were capable of carrying out their assigned mandate.
“However, even if the UN could not have been expected to anticipate what Brahimi pointed out in 2000, the question may be asked: are United Nations missions doing better now after nearly 16 years of the failure in the Srebrenica massacre?
“To the contrary, Brahimi’s axiom that ‘there are many tasks which United Nations peacekeeping forces should not be asked to undertake and many places they should not go’ in part explains why the UN embarked on the path towards regionalisation and hybridisation. Building upon former UN secretary general Boutros Boutros-Ghali’s axiom that regionalisation would help to democratise peacekeeping, the axiomatic recommendations made the UN even tardier in deciding to deploy to such places as Burundi, the DRC, Darfur, Liberia, Sierra Leone and Somalia, among others.
“It delegated regional organisations such as the African Union and the Economic Community of West African States (ECOWAS), to take the lead in dealing with the difficult situations and creating conditions for a better-resourced UN, with greater expertise, to take over the peacekeeping mandates. In effect, regionalisation and hybridisation, among others, have contributed to the absence of ‘quality’ troops from the developed world to undertake specific functions in multidimensional peace missions”, Aboagye says.
“Since 1999 when the UN formally established the first PoC-specific mandate with the UN Mission in Sierra Leone (UNAMSIL), the UN has virtually made PoC mandates the norm rather than the exception, especially in deployments within Africa. The UN currently is deploying eight peace operations with PoC mandates, with five in Africa.
“These are: MONUSCO which is beset with perennial cases of rape, UNMIL that is in draw-down mode, UNAMID that, with two of its three sectors is in a high mode of security and is struggling to offer effective protection to civilians in a highly non-permissive environment, UNOCI that had to be saved from mission failure by French action in destroying the heavy weapons of former Ivorian president Laurent Gbagbo, and UNMIS whose forces are reported to have fled and abandoned vulnerable populations in yet another slow genocide by the forces of Khartoum in South Sudan.
“In short, all five UN African missions are arguably not able to fully implement their PoC mandates, the latest example being that of UNMIS. In light of these operational difficulties, the UN, unlike the humanitarian community, has not been able to agree on a common definition of PoC, for political expediency, and continues on the path of mandates replete with caveats that hinder operational initiative, and on the ground continue to lack sufficient means and capabilities.
“For all intents and purposes, however, the ruling by the Dutch court in some ways has resonance with the age-old soldiering by imposing on peacekeepers the need to serve with pride, honour and chivalry in defending vulnerable populations even though they may be opposed by superior state and non-state forces bent on perpetrating heinous acts with impunity,” Aboagye says. In this sense, the failure of the Dutch state may well be the failure of the Dutch commander and his forces that calculated, or miscalculated that, given the overwhelming superiority of the VRS, they did not stand a chance in defending the Muslims seeking refuge at their base.
“The likely implication of this ruling is that contributing countries may in future be hesitant in loaning their men and women in uniform to UN missions in which the demands of the ‘responsibility to protect’ mandates in non-permissive environments are not matched by comparable means, resources and capabilities. Indeed, individual peacekeepers in member states where deployment is mandatory rather than voluntary, may in future challenge the decision of national authorities to assign them to such missions where they stand the unfortunate chance of blighting their professional military and police careers by failing to sacrifice their lives in pride, honour and chivalry for the simple failure of the UN, the international community and their own states.
“Such scenarios do not augur well for the UN that increasingly needs to deploy tens of thousands of peacekeepers in complex missions with PoC mandates.
“The ruling of the Dutch court on the culpability of the Dutch state is a serious indictment on the doctrine of peacekeeping that still needs a major review to realign the international legal, political and military-operational dimensions, in order to ensure that the Srebrenica massacres, like those of Rwanda and Sudan, do not repeat themselves as the decades pass and impunity, rather than accountability, continues to be the defining character of violent armed conflicts and post-conflict interventions.”