Mothers of Srebrenica et al. v. State of The Netherlands and the United Nations

Court	Court of Appeal of The Hague, The Netherlands
Case number	200.022.151/01
Decision title	Judgment in the First Civil Law Section
Decision date	30 March 2010
Parties	Plaintiffs [A], [B], [C], [D], [E], [F], [G], [H], [I], and [J] The Association of Citizens Mothers of Srebrenica State of The Netherlands The United Nations
Other names	Mothers of Srebrenica
Categories	Genocide
Keywords	genocide, group, national, ethnic, racial, religious, immunity, Murder, Responsibility of international organisations, State responsibility
Links	Judgment in the First Civil Law Section

Summary

In July 1995, the safe haven of Srebrenica in Bosnia and Herzegovina was attacked by Bosnian Serb forces resulting in the deaths of between 8 000 and 10 000 individuals. Members of the Dutch battalion who were responsible for the safeguarding of the enclave were completely overrun by the forces of General Mladic.

In 2007, a civil action was filed before the District Court of The Hague by 10 women whose family members died in the genocide as well the Mothers of Srebrenica, a Dutch association representing 6 000 survivors. They are demanding compensation from the United Nations and the Kingdom of the Netherlands by alleging that both are responsible for the failure to prevent the genocide at Srebrenica.

In the present decision, the Court of Appeal of The Hague confirmed the 2008 decision of the District Court of The Hague that it had no jurisdiction to hear the case as the United Nations enjoyed absolute immunity from proceedings.

Procedural history

On 4 June 2007, lawyers representing 10 women from Bosnia and Herzegovina issued a writ of summons at the District Court of The Hague commencing a civil procedure against the United Nations and the Government of the Netherlands. The Association of the Mothers of Srebrenica represent 6000 women who lost family members during the Srebrenica genocide in 1995. They filed the civil suit to receive compensation and the acknowledgment od the responsibility of the Government of the Netherlands and the United Nations.

On 7 November 2007, leave to proceed against the United Nations was granted by the Court in the failure of the latter organisation to appear in the proceedings.

On 10 July 2008, the District Court of The Hague held that the UN enjoyed absolute immunity and that the Court did not therefore have jurisdiction to hear the case.

The Mothers of Srebrenica appealed to the Court of Appeal of The Hague.

Related developments

On 13 April 2012, the Supreme Court of the Netherlands rejected the appeal by the Mothers of Srebrenica and decided that the UN’s immunity is absolute.

On 16 July 2014, the District Court of The Hague decided in the civil case filed by the Mothers of Srebrenica against the Dutch State that the Netherlands is liable for the loss suffered by relatives of the more than 300 Muslim men who were deported by the Bosnian Serbs from the Dutchbat compound in Potocari on the afternoon of 13 July 1995, and the majority of which was then killed.

Legally relevant facts

In 1995, a UN safe haven was established in the Bosnian enclave of Srebrenica. Members of the Dutch battalion (Dutchbat) were based at Srebrenica and were entrusted with the safeguarding of the enclave. In July 1995, the town was overrun by Bosnian-Serb forces under the command of General Mladic and former leader Radovan Karadžic. As a result, between 8 000 and 10 000 citizens were killed who had taken refuge in the town (para 2.2, District Court judgment).

Core legal questions

On what legal basis is the UN’s immunity from prosecution to be assessed: Article II(2) of the Convention on the Privileges and Immunities of the UN or Article 105 of the UN Charter?
Does Article 103 of the UN Charter preclude testing the immunity of the UN against the right of access to a court of law guaranteed by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights?
If such a test is not precluded, does the need to respect those rights provide a ground to surpass the immunity of the UN in the present case?

Specific legal rules and provisions

Articles 103 and 105 of the UN Charter.
Article II(2) of the Convention on the Privileges and Immunities of the United Nations.
Article 14 of the International Covenant on Civil and Political Rights.
Article 6 of the European Convention on Human Rights and Fundamental Freedoms.
Article 1 of the Convention on the Prevention and Punishment of the Crime of Genocide.
Articles 31 and 32 of the Vienna Convention on the Law of Treaties.

Court's holding and analysis

The Court does not distinguish between Article 105 of the Charter and Article II(2) of the Convention on Privileges and Immunities of the UN as bases for the organisation’s immunity. Article II(2) implements Article 105 by further substantiating which immunities are necessary for attaining the objectives of the UN. There is no indication that Article II(2) is broader in scope than Article 105 (para. 4.4). In any event, relying solely upon Article 105 would not be beneficial for the Association as the question that is necessary to address is not whether immunity in this instant case is necessary for the realisation of the objectives of the UN but whether immunity in general is necessary for the realisation of those objectives (para. 4.5). The UN is therefore entitled to absolute immunity (para. 5.1).

Neither can this immunity be surpassed in the instant case for the rights of the Association to have access to a court of law as guaranteed by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights (para. 5.14). Article 103 of the UN Charter does not preclude testing the immunity of the UN against the right to have access to a court of law as the provision was not intended to allow the Charter to set aside fundamental rights (para. 5.5). However, in applying the test laid down by the European Court of Human Rights in Beer and Regan and Waite and Kennedy, the Court finds that the immunity of the UN serves a legitimate goal (para. 5.6) and is proportionate to the goal aimed for in the case (paras. 5.7-8).

The Court upheld the immunity of the UN (para. 6).