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

Court	District Court of The Hague, The Netherlands
Case number	295247/HA ZA 07-2973
Decision title	Judgment in the Incidental Proceedings
Decision date	10 July 2008
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	Effective control, genocide, group, national, ethnic, racial, religious, immunity, Murder, Responsibility of international organisations, State responsibility
Links	Judgment

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 District Court of The Hague determined 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 12 December 2007, the Government of the Netherlands filed a motion in interim proceedings to (1) have the Court declare it has no jurisdiction in the actions against the UN and (2) to allow the Netherlands as intervening party, or alternatively, to allow the Netherlands to join the UN as a party in the principal proceedings.

Related developments

On 30 March 2010, the Court of Appeal of The Hague upheld the decision of the District Court and found that the UN was entitled to immunity.

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).

Core legal questions

Does the United Nations enjoy immunity from proceedings before the District Court of The Hague?
In the affirmative, should this immunity be passed over in light of the gravity of the charges alleged in the present instance?

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

Under Article 105(1) of the UN Charter and Article II(2) of the Convention on Privileges and Immunities of the UN, the UN enjoys absolute immunity (para. 5.13). It is not for the national court seized of proceedings involving the UN to determine whether the organisation’s immunity is necessary for the fulfilment of its purposes (para. 5.14).

Immunity, however, may be challenged in the event that the UN is bound by conflicting international legal obligations (para. 5.16). However, the Court concluded that the Convention on the Prevention and Punishment of Genocide (in which States undertake to prevent genocide) does not provide for the enforcement of this obligation by means of a civil action (para. 5.19). There are therefore no grounds for an exception to the absolute immunity of the UN (para. 5.21).

The same analysis was applied by the Court with respect to the right of access to a court of law guaranteed by Article 6 of the European Convention on Human Rights (para. 5.22) despite case-law that would require the institution involved to offer an alternative remedy (para. 5.24). The same was true in respect of the right to a fair trial guaranteed by Article 14 of the International Covenant on Civil and Political Rights (para. 5.25).

The District Court of The Hague has no jurisdiction to hear the case against the UN (para. 6.1).