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

Court	Supreme Court of The Netherlands, The Netherlands
Case number	10/04437
Decision title	Judgment
Decision date	13 April 2012
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

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 Supreme Court upheld the earlier decisions of the District Court of The Hague and the Court of Appeal of The Hague confirming that the UN enjoys absolute immunity from prosecution, even in light of the gravity of the accusations alleged by the Mothers of Srebrenica.

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. On 30 March 2010, the Court of Appeal of The Hague upheld the decision.

The Mothers of Srebrenica appealed to the Supreme Court.

Related developments

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

Is the immunity enjoyed by the UN absolute or is it subject to a test of its compatibility with, inter alia, the right of access to a court guaranteed by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights?
If absolute, should immunity prevail because the claims are based on accusations of involvement in genocide and other grave breaches of fundamental human rights?

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

Pursuant to the judgment of the International Court of Justice (ICJ) in Nicaragua v. United States of America in which the ICJ interpreted Article 103 of the UN Charter to mean that the Charter obligations of UN Member States prevail over conflicting obligations from another international treaty, whether earlier or later in time than the Charter, the Supreme Court of the Netherlands came to the conclusion that the UN enjoys absolute immunity. The Court of Appeal therefore erred by examining whether the right of access to the courts guaranteed to the Association by Article 6 of the European Convention on Human Rights and Article 14 of the International Covenant on Civil and Political Rights prevailed over immunity on the basis of the criteria of legitimacy and proportionality (paras. 4.3.4-4.3.6).

The Supreme Court then examined whether the immunity of the UN should prevail in light of the gravity of the alleged charges by reasoning through analogy with State immunity. It concluded that the difference between State immunity and UN immunity is not such as to justify the relationship between the right of access to a court differently in the two cases Following the decision of the ICJ in Germany v. Italy of 3 February 2012, it concluded that the UN is entitled to immunity regardless of the extreme seriousness of the accusations on which the Association basis its claims in the present instance (para. 4.3.14).

The appeal was dismissed (para. 4.4).