Suing peacekeepers for not keeping the peace

Sixteen years ago this month, the Bosnian town of Srebrenica fell to Bosnian Serb forces. Lightly-armed Dutch peackeepers on the ground in Srebrenica yielded to Serb forces without a fight. The worst massacre in Europe since the Second World War followed soon after. That massacre of nearly 8,000 men and boys helped set in motion the belated Western intervention that put an end to the bloody war. It created a crisis of conscience in the West and, eventually, in United Nations headquarters. Secretary-General Kofi Annan (who was head of UN peacekeeping at the time of the massacre) commissioned a soul-searching inquiry that found major flaws in peacekeeping operations. 

The Srebrenica massacre also generated a series of legal proceedings about who bore responsibility for the killings. Most of those legal battles have played out in the Hague, the placid Dutch city that is the de facto capital of international justice, and there were major developments this week. On Monday, former Bosnian Serb commander Ratko Mladic, recently apprehended in Serbia, made a dramatic appearance at the tribunal created to try perpetrators of crimes during the Balkan wars. The hearing was designed to enter his plea, but Mladic refused to play along. He doffed his cap to the public gallery, shouted at the judges, and ultimately was expelled from the courtroom.

The Mladic appearance garnered headlines around the world. But there is little new at stake in that case. The principle that individual military commanders can be held individually responsible for crimes they order is by now well established. The Mladic case is important as a matter of individual justice and as part of the historical record, but it’s not likely that it will create important new precedent. 

Across town, a potentially much more important judicial foray into the events of Srebrenica played out. On Wednesday, a Dutch appeals court ruled that the Netherlands was responsible for the Srebrenica deaths because its peacekeepers handed over Bosnian Muslims knowing that their lives would be in danger. The government had argued that the peacekeepers were under UN control and were not therefore under the command of the government. The court disagreed, insisting that the government had effective control of the forces. 

The ruling was a remarkable victory for the Bosnian who had doggedly pursued the case, but it could also send shockwaves through the UN peacekeeping system. Ideally, it would stiffen the spine of often passive peacekeepers.  States active in peacekeeping might decide that their troops must now be more vigilant about preventing human rights abuses on their watch. The unfortunate reality is that the precedent may simply discourage states from participating. Why send troops into unstable situations and run the risk that your government will be held responsible for atrocities they fail to prevent? Before the ruling came down, the Dutch government even suggested that its participation in future peacekeeping missions could be at risk.

For the moment, the impact may be limited. The ruling will probably be appealed to Holland’s highest court. There’s no way of knowing whether other national courts will be persuaded by the precedent in any case. But for the UN and for the countries that contribute peacekeepers to its operations, it raises once again uncomfortable questions about how much risk peacekeepers must accept to keep the peace.

A reader writes:

You suggest in your piece that the court ruled that the Dutch government was responsible for ALL the Srebrenica deaths. However, this is not the case. The lawsuit was brought by the relatives of three men who were actually employed by the Dutch contingent and who, if I recall correctly, had been working and living on or near the base. Therefore, the court ruled that the Dutch contingent had much more responsibility for their wellbeing than it did for the refugee population at large, with whom it had no such direct relationship.

The impact of this ruling is therefore a bit more limited than you suggest, though I agree that it probably does not bode well for the willingness to participate in future peacekeeping missions.

This is an important point. I haven’t yet been able to track down an English version of the full ruling.