26 Aug 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.