Dutch Prosecutors to Investigate Peacekeepers at Srebrenica

Dutch Prosecutors to Investigate Peacekeepers at Srebrenica

So reports Reuters:

The Dutch prosecutor’s office said on Friday it would look into whether Dutch peacekeeping soldiers should face criminal charges over the 1995 massacre in the Bosnian town of Srebrenica.

About 8,000 Bosnian Muslim men and boys were killed at Srebrenica after Bosnian Serb forces overran the United Nations-protected enclave where Dutch troops were stationed to protect civilians.

The massacre eventually led to the fall of a Dutch government in 2002 after a damning report by the Dutch Institute for War Documentation into the events surroundings the killings.

The Netherlands has always said, however, that its troops were abandoned by the United Nations, which provided them no air support in the U.N.-designated “safe area”.

In a statement, the public prosecutor’s office said victims’ relatives last month requested an investigation into the massacre, adding a probe would take several months to complete.

It said it would decide whether to hold a full-fledged criminal investigation after completing initial inquiries.

This is an interesting development.  I blogged a few months ago about a Dutch court of appeals decision upholding the UN’s immunity from a civil lawsuit brought by relatives of the Bosnian Muslims killed at Srebrenica.  That was almost certainly the right decision, both legally and practically — forcing the UN to pay damages would only undermine its peacekeeping efforts, however flawed they may be.  A criminal prosecution, however, is a different animal.  On the one hand, the UN would not be directly affected by convictions, and there is no a priori reason why peacekeepers shouldn’t be held accountable for international crimes.  On the other hand, it is reasonable to wonder whether prosecuting peacekeepers for failing to keep the peace would deter states from contributing peacekeepers in the future.  (This situation is a bit different, given that we are talking Dutch peacekeepers being investigated by Dutch prosecutors. I can’t see that happening in the US or UK.)

The other issue, of course, is whether the Dutch peacekeepers really did aid and abet the crimes committed at Srebrenica.  The Reuters article quotes a professor at Utrecht University as saying that “the legal criteria for allegedly aiding and abetting genocide seem not fulfilled here. The mere fact that civilians were handed over to the Bosnian Serbs is not sufficient for criminal liability.”  True enough — the prosecution would also have to prove mens rea.  But the professor’s claim still seems a bit hasty: as Furundzija established long ago, aiding and abetting genocide does not require the defendant himself to possess the specific intent required by genocide; knowledge that the principal offender possesses that intent suffices.  Moreover, even if the peacekeepers did not know that the Bosnian Serb troops intended to commit genocide, they might have known that the troops intended to kill the Muslim men and boys, in which case they might have aided and abetted various war crimes and/or crimes against humanity.

I’ll be keeping an eye on the situation.

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Hm. I’m not sure on what you base your claim that you “can’t see that happening in the US or UK”. Like the Dutch in this instance, both governments have historically investigated and prosecuted members of their armed forces for malfeasances both at home and abroad in combat zones, and I see no reason to foresee this ending in the near future. Second, I doubt that this would have any effect on the willingness of nations to commit peacekeeping forces. Why would Dutch prosecution of its own troops have that effect? Now, it very well might have a great impact on the Dutch government’s ability to find volunteers to serve in a combat zone, true (or serve in the armed forces at all if they don’t have the option to decline, as US forces don’t, but I’m assuming they operate more like the Danes, whose troops can decline such missions). I certainly wouldn’t want to volunteer to serve in a combat zone, particularly with restrictive rules of engagement that wouldn’t permit me to effectively secure an area under my responsibility, in a task that the Secretariat’s department of Peace-Keeping Operations estimated would require 34,000 troops to secure and member states… Read more »

Martin Holterman
Martin Holterman

I guess it also depends on whether they can claim the defense of lawful order. After all, these soldiers did what they did because they were ordered to, which doesn’t isn’t a defense for serious crimes such as genocide, but it might be a different story here. I don’t see why the orders given wouldn’t be lawful – or at least close enough to lawful to shield those that followed them.