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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.


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.


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


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


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


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





6 7 8 9 10 11

See, the Motion of Appeal in Cassation page 7, note 18 and the references given there to the fact-finding agencies 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 To be seen, inter alia, on Youtube:, 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, p. 2087 rule 10 – p. 2088 rule 9 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 See, the originating writ of summons under numbers 21-28 See, the originating writ of summons under number 324 See, the originating writ of summons under number 325 See, the originating writ of summons under number 324, with reference to the UN Report See, the originating writ of summons under numbers 64-162 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.


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.


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.


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.


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.


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


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 310336 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-Rechtsschutzgew채hrleistung f체r nationale und EU-Gerichte, Neue Juristische Wochenschrift 2011, pp. 1393-1398 Jarass, loc. cit., p. 1394, under II, 1