Immunity for the UN Regarding Srebrenica

by Kevin Jon Heller

AP reports that a Dutch court of appeals has affirmed a lower court ruling that held the UN could not be sued for its failure to protect Bosnian civilians in Srebrenica:

Appeals judges have ruled that relatives of victims of Europe’s worst massacre since World War II cannot sue the United Nations for compensation in a Dutch court.

Lawyers for the family members have vowed to take the case to the Dutch Supreme Court and the European Court of Justice if necessary.

Tuesday’s ruling says that the U.N. has immunity from prosecution enshrined in international conventions that established the world body.

The appeals decision upholds a 2008 ruling by the Hague District Court.

Some 8,000 Muslim men were murdered in July 1995 by Serb forces who overran the Srebrenica enclave in Bosnia despite the presence of Dutch U.N. peacekeepers.

A group called the Mothers of Srebrenica wants to sue the U.N. and the Netherlands.

The UN’s actions in Srebrenica were shameful, but this decision makes sense.  Forcing the UN to pay damages for failed peacekeeping missions, now matter how egregious its errors, will only encourage the UN to allocate its resources elsewhere.  And flawed peacekeeping is better than no peacekeeping at all.

http://opiniojuris.org/2010/03/30/immunity-for-the-un-regarding-srebrenica/

7 Responses

  1. Isn’t this just an international version of the non-justiciability doctrine?

    Does the same thing apply to FOI and national governments, for example? What about the decision to use UAVs instead of armed raids (in domestic law)?

    I thought the standard counter-argument to this was that with power cometh responsibility…

  2. For those who can read Dutch, the full judgment of the court of appeals can be found here: http://www.rechtspraak.nl/ljn.asp?ljn=BL8979.

    I assume that the reference to the European Court of Justice (i.e., the EU Court in Luxemburg) is an error, and that the applicants in fact referred to the European Court of Human Rights.

    As for the judgment, it is interesting to see that the Court actually goes into substance in determining whether the UN’s immunity outweighs the interest of the Mothers of Srebrenica in this specific case, basing itself on the criteria provided by the ECtHR in Beer and Regan and Waite and Kennedy. It accepts that the immunity of the UN results in an infringement on the right to fair trial of the Mothers of Srebrenica, but does not consider this disproportional in the given case. Another relevant factor to the Court is that the UN is not the actual perpetrator of the genocide, but that the applicants complain that it failed to prevent the genocide. It therefore suggests the applicants can still sue the actual perpetrators. It also considers that the case against the Dutch state is still pending, even though it foresees that the Netherlands will argue that everything happened under the responsibility of the UN, but it does not want to anticipate any outcome of that case.

    Certainly an interesting judgment, and well-reasoned from the point of view of international law.

  3. Wim,

    Thanks so much for the additional info!

  4. Wim, that would be an interesting conclusion:

    Episode 1: UN cannot be sued, but you have a right to a fair trial since you can sue the Netherlands
    Episode 2: The Netherlands are not responsible, since the UN had effective control, but we already said that they can never be sued
    (Episode 3: At least you tried, although you had no way of winning)

    A strange loop indeed

  5. Please see an opinion we have published on this UN immunity ruling by Geert-Jan Alexander Knoops on the Robert Amsterdam blog … there are many future implications which should be carefully considered.

  6. @Advocatus: I’m afraid I’ll have to reply in the same way as when I defend the CFI’s approach in Kadi over the ultimate appellate ruling: The law does not provide an answer for all injustices. It’s an imperfect instrument, and some problems can only be fixed through the political branches, or through simple civility, or in countless other non-legal ways.

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