COLUMN

When the Blue Helmets Are to Blame

When the Blue Helmets Are to Blame

What happens when international peacekeepers turn their backs on people seeking protection? Recently, a Dutch court decided that a government can be held legally responsible for the failures of peacekeeping troops it has sent abroad. For victims’ families, the ruling is an important victory, one that not only identifies the peacekeepers’ failures but paves the way for compensation. For countries that dispatch peacekeepers to crisis zones around the world, however, the decision could be a worrisome precedent.

Nineteen years ago this summer, Bosnian Serb forces operating near the town of Srebrenica committed the worst massacre in Europe since World War II. In all, Serb forces executed more than 8,000 Bosnian Muslim men and boys. As the town fell, a Dutch battalion of U.N. peacekeepers assigned to protect the area fired not a single shot at the advancing Serbs. Warplanes dropped a total of one bomb before U.N. commanders decided that a military operation to save the enclave was too risky. The Dutch peacekeepers, outnumbered and outgunned, later turned over to Serb forces Muslims who were sheltering on their compound; many of these people were later executed.

There have been multiple international legal cases over what transpired in Srebrenica, most notably the trial of former Serbian President Slobodan Milosevic (who died before a verdict was reached) and Bosnian Serb leaders Radovan Karadzic and Ratko Mladic. In 2004, international judges found Bosnian Serb general Radislav Krstic guilty of abetting genocide in Srebrenica. The failure of the international community to prevent the massacre also spawned a series of commissions of inquiry, including one completed by the United Nations in 1999. It concluded that the organization "failed to do [its] part to help save the people of Srebrenica from the Serb campaign of mass murder."

For the families of those killed, the process of more precisely identifying the responsible parties and holding them accountable has been agonizingly slow and incomplete. In 2007, one frustrated group of Srebrenica victims opted to focus on the culpability of the country that sent the peacekeepers to Srebrenica — the Netherlands. Several relatives of Srebrenica victims filed claim in Dutch court against both the Dutch government and the United Nations for the failure of the peacekeepers. The judges decided quickly that the United Nations itself enjoyed almost impenetrable legal immunity (as Haiti’s cholera victims have discovered). But determining whether the Dutch government bears responsibility has proved to be more complicated. In 2013, the highest Dutch court finally decided that the government could be held responsible for some limited aspects of the failure in Srebrenica, including not protecting refugees who sought protection.

Last week’s ruling followed that very narrow precedent. It did not hold the government responsible for the deaths of most Bosnian Muslim men whom Bosnian Serb forces captured and executed. Nor did it pin on the government the broad failure of the peacekeeping force to defend the town, which the U.N. Security Council had designated a "safe area" two years earlier, in 1993. But the judges did find the government liable for the peacekeepers’ decision to deliver Muslims under their protection to Serb forces. Of those handed over, around 300 were executed. The court found that "cooperation with the deportation … of the able-bodied male refugees who had sought refuge at the compound [was] an unlawful act for which the State is liable." It concluded that the Dutch troops "must have been aware of the serious danger of genocide" if the men were handed to Serb forces.

The question of whom the Dutch battalion in Srebrenica was taking its orders from has been central to the legal proceedings. At first, some judges were persuaded that the government did not have control over its forces and that the United Nations was fully in the driver’s seat. That view has a certain logic: When governments offer troops as peacekeepers, they normally put them under U.N. command and control (that’s one reason the United States very rarely contributes its own troops to U.N. missions). Whatever their nationality, peacekeeping troops are supposed to take orders from the mission commander rather than from national capitals.

The reality of peacekeeping is more complex. In its ruling, the court relied heavily on a several-hundred page review of the Srebrenica collapse commissioned by the Dutch government in 1996. It found that Dutch officers were in frequent contact with senior commanders in The Hague, as well as with U.N. commanders. Given that peacekeepers in fact communicated with and responded to multiple masters, the court decided, the Dutch state still had "effective control" over the peacekeepers, even if they were formally under U.N. command and control.

The new ruling adds to an array of questions about whether and when victims can hold peacekeepers to account. Adam Smith, a peacekeeping expert at the International Peace Institute, notes that the Srebrenica decision forms part of a shifting legal landscape for peacekeepers. Important developments include the cases against the United Nations for spreading cholera in Haiti, continued investigations of peacekeepers for sexual misconduct during missions, and questions about the legal rules that govern the conduct of the U.N.’s intervention brigade in the Democratic Republic of the Congo. "In combination, these issues do start to raise concerns for troop contributors," says Smith.

In Europe, where this decision will likely have the greatest impact, most countries are already reluctant participants in U.N. peacekeeping. As the Afghanistan operation winds down, some observers have wondered whether European countries might not deploy more of their forces with the United Nations. The Dutch, whose forces saw heavy combat in Afghanistan, contributed several hundred troops recently to the U.N. operation in Mali. But there are plenty of obstacles to deeper European participation in peacekeeping. European militaries have serious concerns about how the U.N. manages its operations and whether their troops can operate effectively with contingents from poorer, less well-equipped countries. At an emotional level, the still-searing experience of the U.N. mission in Bosnia — which was largely manned by European forces — likely amplifies that reluctance.

The Dutch court’s ruling is an important affirmation that there will be consequences when peacekeepers fail at their responsibility to protect. But it will also be a reminder to troop-contributing states of the things that can go wrong when their forces don blue helmets.