#21 Srebrenica Aftermath:
Serb Guilt & Dutch Liability for the Genocide
in the UNPROFOR ‘Safe Area’ in Bosnia
– Dr Regeena Kingsley
In the last blog I detailed the shocking and profoundly disturbing events that took place under Dutch command in the Srebrenica United Nations (UN) “Protected Area” in 1995 within the broader UN Protection Force (UNPROFOR) Operation in Bosnia-Herzegovina (see blog #20 Betrayal & Barbarism in Bosnia: The UNPROFOR Operation, National Caveats & Genocide in the Srebrenica UN “Protected Area”). These tragic real-life events have haunted Serbia, the Bosnian Serb Republic (Republika Srpska), the Federation of Bosnia and Herzegovina (Federacija Bosna i Hercegovina), the Netherlands, the UN organisation, and the entire international community as a whole, during the following two decades until the present day.
This blog will discuss the ongoing legacy of the Srebrenica disaster. First of all, it will address the attitudes shown and actions taken by Serbia and the new Bosnian Serb Republic during the twenty years that have passed since the genocide took place within Bosnia, during that nation’s war for independence from Serbian rule.
Subsequently, the mass resignation of Prime Minister (PM) Wim Kok’s government in the Netherlands, following an investigative report into the Srebrenica catastrophe, and the predominant posture adopted by Dutch governments since the 1995 tragedy will be discussed. Five dominant ‘reasons’ that have been used repeatedly by Dutch government and military officials over the past 20 years, to justify the conduct of DutchBat III in Srebrenica, will also be assessed. The question of whether it was cowardice, ignorance or national caveat constraints that motivated the passivity and inaction by Dutch military forces in the Srebrenica UN safe area, in the face of impending genocide against the war refugees, will then be examined.
Finally, the important political and legal consequences of this terrible Dutch and UN failure in the Bosnian theatre of conflict will be examined, with regard to two important court cases seeking redress that have taken place in the Netherlands.
The first of these court cases concerns a lawsuit by civilian Srebrenica survivors, or relatives of the approximately 8,000 executed, male victims, against the Dutch State. The Srebrenica plaintiffs argue that the Dutch State is financially liable for the deaths of their loved ones, since Dutch UN forces failed to protect them while they were sheltering as war refugees under the UN flag in the guarded Srebrenica UN safe area in July 1995. The Srebrenica survivors and relatives are seeking financial compensation from the Dutch State as reparation for their suffering and the loss of their family members. The rulings handed down in this court case in Holland on the question of national liability for the failures of national military forces within Multinational Operations (MNOs) has important international ramifications for all past, present and future multinational security operations, as well as for all Troop Contributing Nations who contribute military forces to operate as part of an international security campaign in any given conflict theatre.
A second lawsuit has also recently been set in motion by the Dutch Battalion III (DutchBat) soldiers themselves. After being rendered powerless eye-witnesses by government-imposed national caveats in their Rules of Engagement (ROE) to the nine days of horrific, human savagery in the Srebrenica safe zone, and then being blamed internationally for the ‘Srebrenica Massacre’ for over 20 years, these DutchBat veterans of Srebrenica are now likewise suing the Dutch State for damages and financial compensation. This lawsuit similarly holds an extremely important warning for national governments that continue to bind their deployed military forces with so many crippling national caveat constraints, that their military forces are not actually able to carry out their own mandated security tasks within their own assigned Areas of Responsibility within international security missions. In being so obtuse toward security realities and heavy-handed with national caveat fetters, these national governments are culpable of transforming their robust, combat-capable, national military contingents with a clear mandate and responsibility to fight and to protect others and themselves within a MNO in a conflict theatre, into anaemic, non-combat-capable, spectator-soldiers who are not permitted either to fight or to defend others or themselves in times of security crises, and who thereby become an additional class of powerless victims within the conflict.
Serb Guilt, Admission & Regression
To begin, it is a sad reality that during the decade following the Srebrenica genocide, the governments of both The Republic of Serbia (Republika Srbija) and the newly-created Bosnian Serb Republic (Republika Srpska) in Bosnia-Herzegovina both indulged in ‘a dynamic of obstructionism on war crimes’, taking a ‘hard-line stance’ on the issue and refusing to admit to the truth or the full scale of Serb actions and culpability for war crimes in Srebrenica.[1]
The Two Bosnia’s: The Bosnian Serb Republic and the Federation of Bosnia and Herzegovina created at the end of the Bosnian War by the 1995 Dayton Peace Accords.[2]
It was not until January 2004, when placed under immense international and UN pressure, that the President of the Bosnian Serb Republic, President Dragan Caric, changed his nation’s stance and publicly admitted to Bosnian Serb culpability in the brutal events that took place in Srebrenica, stating: ‘After years of prevarication, we will have to finally face up to ourselves and to the dark side of our past. We must have courage to do that.’[3] As a result of this international pressure and the nation’s resulting change in posture, the first honest Bosnian Serb government report detailing Bosnian Serb involvement in the genocide in Srebrenica during 1995 was at last publicly released.
The report revealed a number of important facts:
- From July 10-19, 1995, several thousand Bosniaks ‘were liquidated in a manner which represents a heavy violation of international human rights’;
- Police from neighbouring Serbia and rebel Serbian forces in Croatia had received orders to participate in both the assault on the Srebrenica UN safe haven and the liquidation operation, which formed the first two phases of “Operation Krivaja” in Bosnia-Herzegovina;
- The executioners had taken all measures to hide their crimes from international authorities and investigators by removing thousands of dead bodies into 32 mass graves;
- 7,800 males were known by the Bosnian Serb Republic to have been killed in the mass executions, while a further 8,731 men remained missing; and lastly,
- A public admission that ‘some members of the Serb people have committed a crime in Srebrenica in July 1995.’[4]
Following in President Caric’s footsteps, the government of Serbia also altered its formerly defiant and dishonest position on its role in the genocide in Bosnia. The Serbian sea-change came about in 2007 as a result of a landmark case in which the State of Bosnia and Herzegovina sued the State of Serbia in a civil lawsuit before the International Criminal Tribunal for the Former Yugoslavia (ICTFY), the Yugoslavian war crimes tribunal created after the war by the UN’s International Court of Justice (ICJ or ‘World Court’ established in 1945 for the settlement of inter-State disputes). The Bosnian State charged the Serbian State of having intended and acted with the Bosnian Serbs to commit genocide in Bosnia during the years 1992-1995, and argued further that Serbia was complicit in the destruction of 40,000 Bosniak civilians in and around the town of Srebrenica.
After hearing the case, the ICTFY ruled that the State of Serbia, under the leadership of President Slobodan Milosevic, had indeed violated the State of Bosnia during that three-year-period, had provided financial and military support to the Bosnian Serbs, and had also run its own Serbian ‘proxy army’ there during the war.[5] According to the international court, Milosevic and other leaders of Serbia had been ‘fully aware’ about the deep-seated hatred and intent to commit massacres among the Bosnian Serb military forces in the Srebrenica region of Bosnia, but ‘did nothing to avert atrocities or prevent the killings’.[6] Serbia was therefore guilty of violating its own legal obligations under the 1948 UN Convention on Genocide to which it was a signatory party.[7] According to the ICTFY, Serbia ‘could and should’ have prevented the genocide, and certain senior Serbian political and military leaders, including Milosevic, were put on trial for war crimes before the tribunal, including complicity in genocide (Article 3 of the UN Genocide Convention).[8] However, the court also ruled that the evidence of direct Serb involvement in the ethnic cleansing of the non-Serb population in Bosnia was ‘too broad’ to hold Serbia guilty of having committed genocide in Bosnia (an exoneration that is now being contested by the Bosniak president of Bosnia and Herzegovina).[9]
A map of the Balkans today showing the nation of Bosnia and Herzegovina and the Republic of Serbia within the territorial area formerly known during the Cold War as the Communist State of ‘the Federal People’s Republic of Yugoslavia.’[10]
Having been cleared internationally of the war crime of genocide, in 2010 the Serbian parliament participated in the global 15th anniversary commemorations of the Srebrenica genocide by officially condemning the Srebrenica Massacre.[11] Serbian President Boris Tadic also used the occasion to declare publicly that ‘Serbia will not give up on finding the perpetrators of war crimes, especially General (GEN) Ratko Mladic.’[12] Indeed, it was following this statement that GEN Mladic, Republika Srpska’s leading wartime general in Bosnia, and Radovan Karadzic, its acting President at that time, were both apprehended and handed over – somewhat ironically – to the Dutch, to face justice at the ICTFY in The Hague.[13]
Tadic’s Serbian successor, President Tomislav Nikolic, went one step further in 2013 by appearing on State television in Bosnia-Herzegovina with an apology, stating:
‘I kneel and ask for forgiveness for Serbia for the crime committed in Srebrenica. I apologize for the crimes committed by any individual in the name of our state and our people.’ [14]
That same year Serbia signed a bilateral protocol with Bosnia and Herzegovina to cooperate with each other in bringing to justice individuals accused of war crimes during the Bosnian war. Due to this agreement, in February 2017 the State of Bosnia for the first time began a war crimes prosecution case in a Serbian court against eight Bosnian Serb policemen who fled to Serbia following the war. The former members of a special police unit, including their commanding officer, are accused of having organised and participated in one of the massacres that took place during the Srebrenica genocide, in an agricultural warehouse located in Kravica village near the town of Srebrenica, in which the men shot to death more than 1,300 Bosniak, male civilians.[15]
Serbian Presidents Boris Tadic (2004-2012) and Tomislav Nikolic (2012-2017).[16]
Despite this progress, however, there has also been some regression in recent years. The truthful admissions made by President Caric in the Bosnian Serb Republic were withdrawn, and even denied absolutely, in the years following the 2004 release of the Bosnian Serb government report.[17] In fact, the current Bosnian Serb President of Republika Srpska, President Milorad Dodik, declared as recently as 2015 that the whole Srebrenica genocide was a “lie” and a conspiracy against the Serbs.[18] Indeed, despite the fact that the ICTFY has decreed categorically that the murders committed in Srebrenica were acts of genocide, in addition to the fact that GEN Mladic is today serving a sentence of life in prison in The Hague for ‘masterminding Serb atrocities throughout the war that left 100,000 dead’, Bosnian Serbian government officials continue to deny reality and are refusing to admit that Bosnian Serb forces committed the crime of genocide during the Bosnian war of independence from 1992-1995.[19]
Milorad Dodik, the current President of Republika Srpska since 2010.[20]
In addition, official national delegations from both Serbia and the Bosnian Serb Republic were notably absent at the ceremony commemorating the 23rd anniversary of the Srebrenica genocide this year in July 2018, during which the newly-discovered bodies of 35 executed male victims were buried in the mass graveyard that holds 6,575 other victims of the Srebrenica slaughter.[21] Their absence led Dunja Mijatovic, the Council of Europe Commissioner for Human Rights, to remark that: ‘Across the region today there should be commemoration and remembrance of the victims of the Srebrenica genocide. Unfortunately, this is not the case’.[22]
Government Collapse: Political Fallout from Srebrenica in the Netherlands
Like the Serbs, the Dutch too struggle both to acknowledge and come to terms with the shame of their failure to prevent the horrific events that took place in their UNPROFOR Area of Responsibility (AOR) at the Srebrenica UN ‘Protected Area’ in July 1995.
Although the culpability of the Dutch in the savagery of Srebrenica is different and less severe than the bloodguilt on the hands of the Serb soldiers who actually committed the genocide, it is clear that the comportment of Dutch UN troops in the Srebrenica Protected Area left much to be desired, and actually permitted the Serbs to commit mass murder and mass rape against thousands of non-combatant, Bosniak, civilian refugees who had sought safety under Dutch protection in the UN-designated safe zone.
Marcus Tullius Cicero, the renowned Roman statesman, lawyer and philosopher, once stated:
‘But with respect to injustice there are two types: men may inflict injury; or else, when it is being inflicted upon others, they may fail to deflect it, even though they could. Anyone who makes an unjust attack upon a fellow human being, whether driven by anger or by some other perturbation, seems to be laying hands, so to speak, upon another human being. But also, he who fails to defend a fellow human being, or to obstruct injustice when it is within his power to do so, he is at fault just as if he had abandoned his parents or his friends or his country [emphasis added].’[23]
In this respect, the actions of the Dutch military contingent fall into the second category of ‘neglecting to defend others and deserting one’s duty’, in that they committed injustice in Srebrenica because they failed to obstruct injustice by the Serbs when it was in the power of Dutch forces to do so.
This latter form of ‘injustice-by-neglect’ was considered by Plato, the great Greek philosopher and founder of Western political philosophy, to be mostly the crime of the philosophers and intellectuals in that:
‘They are immersed in the investigation of the truth and that, disdaining the very things for which most men vigorously strive and even fight one another to the death, they count them as nothing…They observe one type of justice, indeed, that they should harm no one else by inflicting injury, but they fall into another; for hindered by their devotion to learning, they abandon those whom they ought to protect [emphasis added].’[24]
Plato considered that such individuals were unfit to hold public office in government, and stated that: ‘They should not even embark upon public life unless they are forced to do so.’[25]
Cicero and Plato’s statements seem particularly appropriate in discussing the government of the Netherlands in 1995 and their contribution to the catastrophe that occurred in the Srebrenica safe area. Despite having lobbied the UN hard during 1993-1994 and ‘done everything it could to get the prestigious assignment’ of defending the UN Srebrenica Protected Area within the Chapter VII UNPROFOR mission in Bosnia, in order to ‘improve Dutch credibility and prestige in the world’, the politically Left-leaning, civilian politicians within the Labour government cabinet of PM Wim Kok had, through risk-aversion and a general disdain for the necessity of lethal force in war situations, handicapped their deployed military forces with politico-legal caveat fetters that rendered robust, defensive, military action impossible – and therefore also the accomplishment of their UNPROFOR protection mission.[26]
Following the dreadful human suffering that took place among the civilian population sheltering in the Srebrenica UN Protected Area under Dutch UN protection and command, including the execution of approximately 8,000 Bosniak men, boys and infants, and the mass gang-rape of untold numbers of attractive or young Bosniak women, several investigating committees were established to examine Dutch conduct in Srebrenica, each of which resulted in a report. Among these were: (1) a UN report in 1999; (2) a French parliamentary report in 2001; (3) a Dutch Netherlands Institute for War Documentation (Nederlands Instituut voor Oorlogsdocumentatie or NIOD) report in 2002; and (4) a Dutch parliamentary report in 2003.[27]
As mentioned previously in blog #20, the report published by the NIOD following seven years of investigation was so damning of the decisions taken by the politically Left-leaning Dutch government during the Srebrenica genocide that, within only six days of its release, the sitting Dutch PM Kok, resigned as leader of the Dutch nation in a political firestorm of scandal and shame.[28] The NIOD report criticised Dutch politicians in the government both for ‘failing to adequately prepare, arm and support the troops’ and for ‘sending them to Bosnia with a vague mandate to protect lives but seemingly insufficient weaponry to shield civilians from Bosnian Serb forces led by General Ratko Mladic.’[29] Dutch politicians had ‘put prestige before planning and sent poorly prepared troops on an ill-defined “mission impossible”’ in Bosnia, it claimed.[30] The report concluded by stating that:
‘The genocide could have been prevented if the Dutch government and its military leadership in the city had reached other decisions and had negotiated more courageously.’[31]
Wim Kok, the Prime Minister of the Netherlands from 1994-2002, on his way to submit his own and his government ministers resignations to Dutch monarch, Queen Beatrix of Holland.[32]
PM Kok’s acceptance of responsibility for the timid and apathetic errors he and others under his authority had made in political and military leadership with respect to their Dutch UNPROFOR contingent in the UN Srebrenica Protection Area, and his subsequent resignation from office as Prime Minister, resulted in the collapse of his entire Labour government which – until the NIOD report – had continuously held power in The Hague and governed Holland for a period of eight years from 1994-2002.[33] According to PM Kok, the findings of the NIOD report with regard to the conduct of the Dutch government and Dutch UN forces in 1995 ‘had left the government with no choice but to resign en masse’.[34]
The terrible failure of Dutch military forces in their mandated obligations to protect war refugee civilians on the Bosnian battlefield had had serious political repercussions in The Hague. The decision PM Kok and his cabinet members had taken, firstly, to frown on the ‘use of lethal force’ by Dutch soldiers – even while they were deployed in an active warzone and charged with militarily defending 50,000 vulnerable war refugees, and secondly, to impose strict caveat fetters that were indicative of a risk-averse and casualty-wary mind-set, represented extremely grave mistakes and a spectacular miscalculation of both military and political realities in Bosnia and in Holland.
Dutch in Denial: Arguments Used to Diminish Culpability in Srebrenica
Nevertheless, many Dutch government officials and military personnel have gone out of their way during the passing years either to deny or significantly down-play Dutch culpability in the human catastrophe that unfolded in Srebrenica. Indeed, even PM Kok, in the statement he made upon his resignation on 16 April 2002, avoided taking some of the culpability for the genocide, stating:
‘The international community as a whole is anonymous and cannot therefore demonstrate its accountability vis-à-vis the numerous victims of Srebrenica. One country, that is a specific government, can and should. Being responsible for taking part in a mission set out by the international community as such (UN), the Netherlands then, must – as a proxy of that international community – make a gesture towards the people of Srebrenica, not because the Dutch are guilty, but because the international community has failed to prevent the mass slaughter’ [emphasis added]. [35]
Some have argued, moreover, that the resignation of the Wim Kok government was not in fact a genuine admission of guilt, failure or repentance at all, but rather a calculated and even somewhat cynical, ‘politically correct’ gesture that had little real impact on Dutch politics. This is owing to the facts that: (1) the resignation took place not immediately after the genocide, but a full seven years after the events of Srebrenica, and only upon the public release of the NIOD report; (2) PM Kok was already intending to quit politics that year; (3) the government resignation transpired only four weeks before a scheduled national general election was due to take place; and lastly, and perhaps most importantly, (4) by resigning the government avoided an official government debate on the findings of the NIOD report on the Srebrenica Massacre in the Dutch-controlled UNPROFOR ‘safe area’.[36] For many, especially survivors of the Srebrenica genocide, the gesture of ‘mass resignation’ was simply ‘too little, too late’.[37]
Anti-independence Bosnian Serb military forces under the command of Bosnian Serb General Ratko Mladic, acting on the orders of their appointed President Radovan Karadzic (top left), attack and invade the Srebrenica UN Protected Area, 8-9 July1995.[38]
Even more disturbing, perhaps, is the fact that over the 23 years that have passed since the Srebrenica genocide, a number of claims and excuses have continually been made by Dutch government and military officials to justify and exonerate the passivity and inaction of Dutch military forces in the Srebrenica UNPROFOR Protected Area under their command, and to diminish Dutch culpability in the human tragedy that ensued there. Yet many of these arguments do not hold up under scrutiny as genuine reasons for the lack of any kind of military action from Dutch UN troops in defence of the civilian war refugees in Srebrenica.
To illustrate this point, in the following I will state five of the most dominant and persistent arguments used by Dutch officials to justify or excuse Dutch conduct in Srebrenica, and then provide the counter-arguments to these claims.
#1 DutchBat III soldiers had not received adequate military training prior to deployment.[39] This reason for Dutch failure in Srebrenica has been given time and time again. However, the fact is that the 600-strong UNPROFOR Dutch Battalion III (DutchBat III) contingent deployed to Srebrenica from January-July 1995 was a combat battalion, armed with weapons of war, and drawn from the Netherland’s 11th Airmobile Brigade. The latter is a Dutch light infantry Quick Reaction Force (QRF) boasting ‘professional and well-trained soldiers’ trained for rapid deployment around the globe within 5-20 days to ‘perform combat operations under the most severe conditions’, in order to (1) defend its own or allied territory, (2) protect the international rule of law and support law enforcement, or (3) contribute to disaster relief and humanitarian aid missions.[40] In short, the Airmobile Brigade was a unit specifically designed and trained to ‘regularly be involved in military action’.[41]
Indeed, even the NIOD report itself admits that ‘the preparation and training were sufficient, generally speaking, for the military aspect’ of the safe area protection mission in Bosnia.[42] According to the report, what was lacking was not in fact military training or ability then at all, but rather something far less concrete – namely, an inadequate provision of ‘information and insight into the situation of the population, its cultural background and experiences during the civil war’, which gave rise to an ‘introverted mentality’ and a marked negative and dismissive attitude on the part of the DutchBat soldiers towards the Bosnian population they were being deployed to protect as UNPROFOR forces.[43]
#2 The combat battalion had only been supplied with light weapons.[44] This is another argument for military inaction that is consistently repeated in the Dutch Srebrenica narrative. It is indeed accurate to state that the DutchBat III battalion was only provided with ‘light weapons’ with which to defend the Srebrenica UN Protected Area, and that in contrast the Bosnian Serb forces surrounding the enclave were in possession of ‘heavy weapons’ such as a number of tanks, tracked armoured vehicles and medium- and long-range artillery pieces, in addition to mortars, bazookas and small arms.[45] However, it must be understood that these ‘light weapons’ included a fleet of Armoured Personnel Carriers (APCs) mounted with 0.50 calibre heavy machine-guns, TOW anti-tank weapons mounted on top of each of the 12 UN Observation Posts (OPs), a good number of shoulder-launched AT-4 anti-tank rockets, a large number of heavy machine guns as well as light submachine guns, and a collection of automatic weapons, rifles and pistols.[46]
Consequently, this excuse given for Dutch passivity belies the reality that the Dutch combat soldiers, though indeed ‘lightly armed’ by definition, did in fact have in their possession, and at their disposal, a sizable and lethal arsenal that was certainly sufficient enough to mount a reasonable defence against any Serb advance on the Srebrenica UN Protected Area, including through the infliction of lethal damage on approaching tanks. The weakness of the battalion lay not so much in its weaponry, therefore, but rather in the decision made by the Dutch government, together with National Commander Lieutenant-Colonel (LTCOL) Thomas (“Thom”) Karremans, not to allow the Dutch combat battalion to employ this arsenal of lethal weapons appropriately and actually use it to expend lethal force against attacking Bosnian Serb forces in defence of the Srebrenica safe haven from January-July 1995. To exemplify, when the Bosnian Serb militia attacked and invaded the UN safe area on 8-11 July, there were 29 heavy machine guns at the disposal of Dutch forces in the central Potocari compound alone, which the Dutch not only failed to use, but also handed over voluntarily to the invading Republika Srpska forces that they knew were intent on committing genocide within the UN Protected Area.[47]
In addition, it has been argued, including by former UN Secretary-General Kofi Annan, the author of the 1999 UN report into the Srebrenica genocide, that though they are ‘individually less destructive’ than heavy weapons, the impact of these common, easy-to-use, easy-to-hide, Small Arms and Light Weapons (SALW) is ‘devastating’ and ‘have caused more and damage and killed more people than heavy weapons have’, to the extent that in terms of their destructive power they ‘could well be described as “weapons of mass destruction”’.[48] Given the destructive and lethal power of such light weapons, then, it seems implausible that the Dutch could not have mounted a significant and effective military defence of the Srebrenica UN safe zone with the ‘light weapons’ they had.
The implausibility seems even greater, moreover, when one considers that it was in full knowledge of the ongoing, active war in Bosnia, as well as the specific Chapter VII ‘Protection Mission’ required from UN troops at the Srebrenica UN Protected Areas, that the Dutch government and military planners selected and distributed these weapons to the Dutch UNPROFOR personnel. Indeed, in a letter from the Dutch government to Parliament on the Dutch contribution to the ‘safe area mission’ in November 1993, the government claimed that by sending a combat unit to Bosnia, ‘Dutch soldiers would now play an active role in UNPROFOR’s self-defence,’ and that the actions of the air mobile battalion could be ‘more robust’ due to ‘their remit and weaponry’ [emphasis added]’.[49]
#3 Due to the fact that only 10% of Dutch convoys was passing through Serbian frontlines during July 1995, as a result of the Serb blockade of the Srebrenica Protected Area since February, the Dutch battalion was suffering shortages of ammunition and fuel, as well as food and medical supplies.[50] This argument about the blockade (itself a crime against the Laws of War as an unlawful ‘starvation tactic’ interdicting the essentials of life to the civilian population), while true, does not explain the decision by Dutch Command in the safe zone not to mount any military defence at all against the invading genocidal militia in defence of the UN Protected Area in the days before or during the Serb military assault.[51] Nor does it explain the orders issued to Dutch combat soldiers stationed at the UN observation posts and inner compounds commanding them not to use the available ammunition and fire the weapons they did have against the invading Enemy forces – not even in unit or individual self-defence.
Moreover, one must also keep in mind that since their initial deployment to Srebrenica in January 1995, outside of building new OPs, the Dutch battalion had not yet used their original ammunition supply to carry out one single concerted military action – either offensive or defensive in nature – to protect the Srebrenica safe zone. To the contrary, the Dutch had actually failed to repel three separate Bosnian Serb military assaults on the safe zone during January and June, and had in fact already twice lost territory, as well as a number of civilian lives, to the Serb aggressors, prior to the full-scale Serb invasion on 8-11 July.[52]
Indeed, in the 1999 UN report into the Srebrenica genocide in the UN Protected Area, except for one single occasion, there are no recorded incidents of Dutch UN soldiers opening fire and expending ammunition on anyone or anything – throughout their deployment from January -July 1995. The only recorded instance occurred during the full-scale Serb invasion of the safe zone on the night of 10 July, when Bosnian Serb infantry were observed in company-strength formation advancing into the safe zone from high ground overlooking the town of Srebrenica.[53] In response, the Dutch National Commander, LTCOL Karremans, ordered his forces to repeatedly fire warning flares from their 81-mm mortar located at B Company’s base, and multiple APC crews from B Company were also ordered to fire their 0.50 calibre machine guns ‘over the heads of the Serbs’, which they did continuously over the period of an hour.[54] However, Dutch forces did not engage in any firefights with Bosnian Serb forces at all.[55] As the report itself states:
‘It is true that the UNPROFOR troops in Srebrenica never fired at the attacking Serbs. They fired warning shots over the Serbs’ heads and their mortars fired flares, but they never fired directly on any Serb units. Had they engaged the attacking Serbs directly it is possible that events would have unfolded differently.’[56]
Therefore, ‘shortages of ammunition’ simply can not be accepted, or believed, as a plausible reason for Dutch inaction in the Srebrenica safe zone.
Lastly, while it might be argued that the Dutch UNPROFOR battalion was suffering shortages in fuel, with which to power their fleet of APCs mounted with 0.50 calibre heavy machine-guns, again the facts contradict this claim. Based on the DutchBat forces’ own account of the events that occurred on the southern perimeter of the Srebrenica UN Protected Area from 8-11 July, when the Dutch soldiers manning the OPs were ordered by LTCOL Karremans to either surrender to the Serbs or abandon their posts, there was sufficient fuel for many of the OP teams to retreat into the interior of the safe area riding in their APCs (e.g. the personnel of OP Foxtrot), or indeed to drive into captivity in the Serb-held towns of Bratunac or Milici with their Serb captors (e.g. the personnel of OP Uniform).[57] In addition, several APCs and other UNPROFOR vehicles were commandeered by the Serbs during the invasion, with sufficient fuel to be used by the Serb forces immediately thereafter as transport around the safe zone during the following days.[58] Lastly, there was also sufficient fuel during the chaos of 11 July to power a DutchBat fleet of 4-tonne trucks, in slowly transporting a multitude of sick, injured and wounded Bosniak refugees along densely-crowded roads from the hospital in the Srebrenica township to B Company’s base in Potocari.[59]
Consequently, ‘lack of fuel’ for UNPROFOR vehicles as an argument for Dutch passivity in failing to defend the Srebrenica Protected Area, like ‘lack of ammunition’, simply does not hold water.
Failure to Protect Leads to Ethnic Cleansing: Caveated Dutch UN Protection Forces fail in their legal and moral responsibility to protect the 50,000 Bosnian war refugees they were deployed to robustly defend in the Srebrenica UN Protected Area.
Top photos: Bosnian Serb soldiers use heavy machine guns to execute thousands of unarmed Bosniak male refugees in “mopping up” genocide operations, burying their bodies in 32 mass graves around Srebrenica, such as this one discovered and excavated in the nearby village of Pilica in 1996.
Bottom photos: A woman begs for help from a UN soldier during the massacre of men and gang rape of young women in the UN ‘safe haven’ in Srebrenica, but due to government-imposed caveat constraints the soldier is helpless to assist her or her loved ones. After the Srebrenica savagery, weeping women grieve for their missing men, and for themselves, at another UN refugee camp at Tuzla airport.[60]
#4 Despite Dutch requests for Close Air Support to protect the Srebrenica safe area, UN military officials refused to send planes to conduct the airstrikes.[61] It is accurate to state that the UNPROFOR Force Commander, French Lieutenant General (LTGEN) Bernard Janvier, and his subordinates, the UNPROFOR Deputy Commander and Head of Sector Sarajevo (France) and the UNPROFOR Chief of Staff (Netherlands), obstinately refused repeated DutchBat requests for airstrikes on the invading Serb forces by way of NATO or UNPROFOR force contributing nations, over a period of six days from 6-11 July, in a manner that is now considered to have perverted the UNPROFOR mandate and mission objective.[62]
According to the UN report, there was also reportedly some ‘confusion’ over the same period between various staff members at UNPROFOR command headquarters at Tuzla and Sarajevo, stemming from badly conveyed or misunderstood verbal communications over the telephone between the two headquarters with regard to air strike requests from LTCOL Karremans.[63] The result was that UN personnel in Sarajevo claimed they were waiting for official air strike requests in written form, or to be officially notified that ‘Close Air Support was needed’ in Srebrenica, while DutchBat UN forces on the ground in Srebrenica spent hours expecting and bracing for waves of NATO air strikes that never arrived, which Sector North-East Headquarters in Tuzla had informed them would take place against 40 identified Serb targets in and around the Srebrenica safe area.[64] It is highly likely, however, that the source of this confusion was, in reality, the markedly negative attitudes and positions taken by the UNPROFOR Commander and his subordinate commanders in Sarajevo on both the use of airpower within the mission and the objective of protecting the UN ‘safe areas’.
Joris Voorhoeve (left), the Dutch Minister of Defence in The Hague, and Lieutenant General (LTGEN) Bernard Janvier (right), the French Commander of UNPROFOR in 1995.[65]
Notwithstanding these UN command failures, however, it is a blatant lie to maintain that the Dutch played no role themselves in the lack of air strikes on Bosnian Serb forces in and around the Srebrenica Protected Area in July 1995.
Joris Voorhoeve, the Dutch Defence Minister at that time, has over the years persistently blamed the lack of air strikes in and around Srebrenica that July on an agreement among the ‘major powers’ not to use air strikes to defend the safe areas because any such strike would endanger UN personnel held in the custody of Bosnian Serb Commander GEN Mladic.[66] However, the 1999 UN report makes clear that the understanding of the UNPROFOR Commander and his Chief of Staff regarding the Dutch government’s position on airstrikes, as of 10 July, was that the Government of the Netherlands was likewise wary of air strikes and ‘was focused on avoiding casualties to their troops’.[67] In fact, the truth is that during the invasion of the safe area by Bosnian Serb militia on 6-11 July, Voorhoeve, in response to a direct Rules of Engagement (ROE) limitation caveat request made by LTCOL Karremans, categorically denied his National Commander’s urgent request for planned air strike sorties from Sarajevo via telephone from The Hague.[68]
A few days later when the safe area was being overrun, Voorhoeve intervened a second time to urgently cancel NATO air strikes in and around the Srebrenica Protected Area actually during the NATO operation, when the planes had taken off from their base in Italy and were already in the air and approaching their intended Bosnian Serb targets, because he was concerned that GEN Mladic might take revenge by killing Dutch UN ‘hostages’ in Serb custody elsewhere in Bosnia and bombing Dutch UN compounds in Srebrenica and Potocari in acts of reprisal.[69] Having taken this firm stance, the staff of the Dutch Chief of Defence joined Voorhoeve in an emergency telephone offensive of ‘ringing round’ to execute the Dutch government’s decision to stop the NATO air strikes.[70]
According to the Japanese UN diplomat, Yasushi Akashi, the Special Representative of the UN Secretary-General for the Former Yugoslavia, Voorhoeve called him on 11 July and ‘requested the air actions be cancelled, due to the threats against his troops’ and because he additionally feared ‘the Dutch troops were too close to the Bosnian Serb infantry and that their lives would be in danger during an air campaign’.[71] In the telephone call, Voorhoeve asked Akashi directly ‘to suspend air presence and Close Air Support missions over Srebrenica’.[72] Although Akashi was already concerned that the Dutch UNPROFOR forces and Bosnian Serb forces might be ‘too close together’ for the NATO air strikes, he informed the NATO Supreme Allied Commander in Europe (SACEUR) and officials at a meeting of the North Atlantic Council (NAC) that he ‘would have been prepared to continue deploying [NATO] air power, if the Dutch Minister of Defence had not stepped in’.[73] According to Akashi, the Dutch Defence Minister’s denial of permission for the airstrikes left him ‘no choice’ and his ‘telephone call had been the deciding factor’ in the cancellation of the NATO air strikes to halt the Bosnian Serb invasion of the safe area.[74]
Nevertheless, during the decades since the Srebrenica disaster, Voorhoeve seems to have repeatedly and publicly blamed the UN, NATO and even a mysterious ‘secret pact’ between the UK, the US and France for the lack of air strikes in Srebrenica, while simultaneously ignoring and refusing to honestly own or admit to his government’s, and his own personal role, in the cancellation of the planned and in-progress air strikes as the Dutch Defence Minister in July 1995 (for instance in this 2015 interview with France 24: https://www.youtube.com/watch?v=dMayhU0tUaQ). During the Dutch NIOD investigation, however, Voorhoeve did clarify his real position at that time in July 1995, stating to Dutch investigators that he would have decided to cancel the air strikes, even if the decision had been solely his alone, since ‘it was the only sensible course of action’ and continuing with them ‘would mean incurring a large and pointless risk’.[75] Indeed, according to Voorhoeve:
‘The military within the Defence Crisis Management Centre had fully agreed with his action. Everyone knew that the enclave had already fallen and that air support could no longer make any difference. The pointless continuation would only have incurred risk, and human lives could have been lost.’[76]
To deny Dutch involvement in the lack of air strikes against Serb forces invading the Srebrenica safe zone, therefore, and to place blame solely on UN officials and other countries outside the Netherlands, is to commit a fraud and a deception on the public.
To these four arguments, it has also been claimed, even by the UN organisation itself, that:
#5 The battalion of some 450 Dutch combat soldiers in July 1995 comprised too few troops to adequately defend the Srebrenica Protected Area in the face of an oncoming invasion force of an estimated 1,500-2,000 Serb militia fighters.[77] This is another oft-repeated claim by Dutch and even UN officials. Yet if this is so, why did the Netherlands send to Bosnia a national contingent that was under-manned and therefore under-strength for the protection task at hand within the UNPROFOR safe area mission? In addition, if the Dutch National Commander knew he had insufficient military forces to protect the Srebrenica UN Protected Area after DutchBat III’s initial deployment to the safe zone in January 1995, prior to or following the three Serb military assaults on the enclave in January and in June, why did he not request UN reinforcements in the preceding months or weeks before the main Serb invasion in July? And why, during the course of DutchBat III’s six month deployment, did LTCOL Karremans order 150 DutchBat III soldiers on leave outside the enclave not to return to the Srebrenica safe area, so that his originally 600-strong contingent dwindled over the months to only 450 by the time of the full-scale Serb attack in July?
Further still, why did the Dutch National Commander decide not to inform UNPROFOR headquarters in Sarajevo of the Bosnian Serb invasion and take-over of the Srebrenica UN Protected Area, over a period of more than a week after the safe zone was overrun on July 11, so that remedial, emergency, defensive action – including air strikes – could have been taken immediately by UN or NATO forces? As Ludwig & Mertin well ask: ‘Why didn’t they request back-up…? And why didn’t they at least surrender properly, instead of – as eyewitnesses say – even assisting the Serbs?’[78]
Interestingly, this fifth argument of ‘too few troops’ as a reason for Dutch passivity in Srebrenica has been rejected even by the disgraced French UNPROFOR Commander, LTGEN Janvier, who in later years asserted to a French national investigative commission that: ‘If we had had 400 Frenchman in Srebrenica, things would have been different. We would have fought seriously.’ [79]
This was a view also shared by the French government. In fact, in the days following the fall of Srebrenica, the government of France expressed surprise in a parliamentary debate ‘on the speed with which Dutchbat had given up the enclave, while the order had been given to halt the VRS [Vojske Republika Srpska army] advance by setting up blocking positions’.[80] The French government believed that ‘Dutchbat could have defended itself against the 1500-strong VRS and four tanks’, especially when Close Air Support ‘had been promised and delivered’.[81] President Jacques Chirac himself personally believed that DutchBat UNPROFOR soldiers had ‘militarily conducted themselves badly’ (‘militairement [avait] mal conduit’) in Srebrenica.[82] As early as the 13th July, Hervé de Charette, the French Foreign Minister, expressed his government’s view on television and in French national and international press, stating:
‘He found it hard to accept the fact that Srebrenica had fallen without a genuine response on the part of UNPROFOR. The Dutch UN troops had not offered adequate resistance in his opinion, and their presence in the coaches used for deporting the population made them an accessory to ethnic cleansing’.[83]
As one can see from this brief overview, these five most dominant and persistent arguments to justify or excuse the Dutch military contingent’s passive conduct in Srebrenica, arguments that have been used repeatedly by the Dutch government or military officials over the decades to this very day, simply do not hold up to scrutiny.
Cowardice, Ignorance or Caveat Constraints?
As a result of these quite evident contradictions, together with worldwide media coverage of the genocide that took place in Srebrenica while the UN safe area was in the care of Dutch UNPROFOR soldiers, the soldiers of DutchBat III have repeatedly been branded collectively as spineless and incompetent ‘Dutch cowards’ over the past two decades.[84] One DutchBat III veteran, Rob Zomer, has related, for instance, that countless times during the last twenty years he has had people say to him: ‘You’re cowards, killers. How could you stand there and do nothing?’[85] ‘Colonel Karremans and his men are objects of deep, abiding contempt,’ Tanner has likewise declared, ‘feelings in no way mitigated by bouts of Dutch hand-wringing, the fall of the government in the Hague and the release of a detailed report […] on who did what in those muddled days.’[86]
This ongoing charge of cowardice against Dutch soldiers has created a great deal of resentment among DutchBat veterans of Srebrenica, who ‘have spent two decades being blamed for a massacre, which they say they could do little to prevent’.[87] As one such veteran, Gerald Verhaegh, has stated in an interview with the German magazine Der Spiegel: ‘It’s not right that we are reproached. We did what we could’.[88]
Ignorance or Informed Inaction?
In fact some UNPROFOR veterans, like Verhaegh, continue to assert that they did not actually know that the vast numbers of men and boys being rounded up and taken away by the Bosnian Serbs on foot or on buses were going to be executed.[89] Further, others claim that though they witnessed the Serbs taking groups of pretty Bosniak women into a building, they did not realise they were being brutally gang raped by the Bosnian Serb forces there.[90]
In addition, the Dutch National Commander himself, LTCOL Karremans, has also pleaded ignorance about the mass executions and mass rape unfolding in his AOR, insisting that he did not understand the genocidal intent of the Serbs until ‘three or four days’ after the UN Protected Area had been invaded.[91] However, this assertion beggars belief, especially when one considers that more than two years earlier, in April 1993, the UN Security Council had already acknowledged in UN Resolution 819 that Bosnian Serbs had not only been continuing to attack civilians, humanitarian aid convoys and UNPROFOR forces in and around Srebrenica, but that they had also begun a deliberate ‘slow-motion process of genocide’, through forced expulsions, mass killings and the denial of food, clean water, electricity and medical assistance to civilians.[92]
LTCOL Karremans has testified, furthermore, in both national and international courts, that during the nine days of genocidal brutality at the UN Srebrenica Protected Area he did not know that the men and boys were going to be murdered by the Bosnian Serbs, and subsequently, that he never saw men or boys being taken away by Bosnian Serb forces at all.[93] Both of these claims were contradicted in 2011 by Karremans’ own army surgeon, Ger Kremers, however, who alleged in a Dutch Profiel documentary television programme that he and Colonel Karremans together ‘watched the men being taken away by Serb forces’, and further, that while watching LTCOL Karremans said to him, ‘It will not end well with them,’ thereby indicating that Karremans knew the men would come to a grisly end at Serb hands.[94] Kremers has accused Karremans of ‘lying under oath’ to both the UN Yugoslavia war crimes tribunal and the Dutch parliamentary inquiry.[95]
Christ Klep, a Dutch military historian from Utrecht University, has also accused Karremans of committing perjury as a result of his own investigation, in which Klep interviewed dozens of former DutchBat soldiers who all said ‘they knew about the impending genocide’ when they were stationed in the Srebrenica Protected Area – well before it actually happened.[96]
LTCOL Thom Karremans, National Commander of the UNPROFOR DutchBat III contingent deployed to the Srebrenica Protection Area, from January-July 1995.[97]
Indeed, the truth is that it was impossible for DutchBat soldiers, or their National Commander LTCOL Karremans, not to know what was occurring in the safe zone during those nine terrifying days on 11-19 July. Multiple survivors of Srebrenica have testified not only that they ‘repeatedly informed the Dutch troops about murder and rapes’ to no avail, but also that ‘many soldiers must have heard the screams of people and the shots’, and seen killings and rapes with their own eyes, as the Serbs methodically carried out their ethnic cleansing campaign throughout the safe area.[98] As Vallely states:
‘They certainly knew that there had been a few summary executions. Dutch troops witnessed definite signs that the Serbs were murdering some Bosnian men.’[99]
In fact, one DutchBat soldier, Lieutenant (LT) J.H.A. (Ron) Rutten was so shocked and horrified at what he was witnessing in and around Potocari village on 13 July, that he took photos of a crowd of ‘terrified’ Bosniak men being interrogated by Bosnian Serb forces, and of 9 corpses of men executed by the Serbs, including one of a Dutch UN soldier positioned beside the slain Bosniak victims as proof of the UN’s presence during the genocide.[100] Rutten smuggled the film out of the enclave and back to the Netherlands on 21 July, where he hoped ‘the photos would help him to give forceful expression to his horror at and the gravity of what, in his firm conviction and according to his own observations, had happened’ within the Srebrenica safe area.[101] After handing the roll of film over to the Dutch Military Intelligence Service of the Royal Netherlands Army to be developed, however, the film was mysteriously ‘destroyed’ as a result of so-called ‘human error’ during its development on 26 July – a suspicious fact that led to multiple government ‘military cover-up’ inquiries, as well as to a range of ongoing conspiracy theories regarding the alleged deliberate destruction of the film in order to protect the image and reputation of the DutchBat battalion and the Dutch Army.[102]
In brief, knowledge of the genocide was certainly there among the soldiers of the Dutch battalion, but corresponding and appropriate action to prevent, suppress or halt the genocide was missing. As a result of this ‘knowledge-without-action’, some of the relatives of murdered Srebrenica victims have drawn stark and disturbing allusions between the ignominious conduct of the Dutch battalion in Bosnia and the failure of the Dutch to protect 75% of their own Jewish population during the persecution and extermination campaign waged by Nazi Germany against ethnic Jews in Holland during World War II.[103] As one relative furiously exclaimed, after a group visit to Anne Frank’s house and museum in Amsterdam:
‘Now we see what happened with Srebrenica. You delivered us into the hands of the killers, the way you delivered the Jews to the Germans in WWII! You did not learn shit in the Second World War!’ [104]
The Driving Force of Informed Inaction: Caveat Constraints
However, when examining the terrible genocidal events that took place in the Srebrenica UN safe zone under Dutch command, it is of vital importance to factor into the equation, as underscored in the preceding blog (#20), that the existence of politico-legal national caveat limitations and bans in the ROE of the DutchBat III UNPROFOR contingent had a large and extremely influential role in determining both the action and inaction of the Dutch battalion in Srebrenica.
The power of Dutch military law which enforces strict compliance to national ROE by all military personnel, including national caveat limitation or prohibition restraints, as well as the sworn duty of obedience to superior orders including those issued by LTCOL Karremans and other superiors along the Dutch chain of command, meant that there was very little that the Dutch UN soldiers could lawfully do in Srebrenica before, during or after the Bosnian Serb invasion of the safe area.
Indeed, as outlined in blog #13, only the National Commander, LTCOL Karremans, had the power and authority to contact and persuade his superiors, including Defence Minister Joris Voorhoeve, in the days before and during the Serb invasion of the UN safe zone, that robust, lethal military action was not only required, but necessary immediately. As the sole mediator between Dutch military soldiers in the field and the civilian political masters in the Dutch national government, only Karremans, through his discussions with superiors, could have brought about changes in the Dutch plan of action (or rather inaction), including corresponding adjustments to the ROE instructions issued to the battalion.
In the absence of such necessary intermediary action by Colonel Karremans as the middle-man between politicians in The Hague and Dutch soldiers on the ground in Srebrenica, however, the DutchBat soldiers remained bound by political, legal and military bonds imposed and enforced on them by both their national government and their superior military commanders in Srebrenica, Tuzla, Sarajevo and The Hague. In short, it was the imposition of national caveat constraints in the battalion’s ROE – not widespread cowardice – that was the constraining and driving force behind the ‘informed inaction’ shown by the personnel of the DutchBat III battalion towards the Bosnian Serb genocide campaign in Srebrenica during July 1995.
Indeed, the record shows that where the Dutch soldiers were actually permitted by their commanders to take action, for instance when B Company was ordered to provide an escort to the refugees fleeing from the Srebrenica township to Potocari on 11 July, many soldiers did their best to keep the refugees moving, urging them on away from the Bosnian Serb Chetnik forces, and to protect the refugees, by taking up position at the rear of the fleeing column and by making themselves in their UN uniforms clearly visible to Bosnian Serb forces as a warning to them to stop firing on the civilians.[105] In fact one Dutch soldier was so concerned for the welfare of a wounded civilian among the crowd of refugees that he found a wheelbarrow, placed the wounded woman in it, put his weapon on top of her, and pushed the wheelbarrow and the wounded woman five kilometres to safety in Potocari.[106] On arrival in Potocari, the soldier was greeting with applause and kisses by other refugees for his extraordinary act of care and compassion towards a wounded Bosniak civilian.[107]
However, without explicit orders from their battalion/company commanders and the appropriate ROE to act robustly and kinetically in defence of the civilian population during the preceding days, before and during the invasion of the UN safe area from 6-11 July, these same soldiers and other personnel of DutchBat III were powerless to act to defend the civilian population around them or to render them assistance without risking a court martial – an extremely serious and potentially career-ending trial, before either a national civilian or military court, for transgressing against national military law by disobeying superior orders.
The Crime of Genocide & the Duty to Disobey Illegal Orders under LOAC
Whether or not it would have been worth the risk for DutchBat soldiers to hazard a court martial in a Dutch military court, that is constrained by domestic and international law (i.e. all conventions and treaties ratified by the Netherlands, including the UN ‘Convention on the Prevention and Punishment of Genocide’ which the Netherlands signed and acceded to in 1966), and act counter to immoral superior orders in order to save innocent lives in the midst of an unfolding human tragedy, is another question entirely – and one that can only be answered by each individual.[108] For instance, by actually employing lethal force to kill invading Serb militia fighters in lawful unit or individual self-defence, by refusing to stand by and passively watch the rape of multiple women or the executions of countless male Bosniaks, or by refusing to assist the Serbs during the genocide in their separation of men and boys destined for death, from their mothers, wives, sisters or daughters destined for rape or expulsion. For as the Netherland’s own government website states: ‘The agreements laid down in a treaty are binding and must therefore be complied with.’[109]
In point of truth, under the body of international laws relating to the conduct of war, known as the Law of Armed Conflict (LOAC), it is in fact the duty of any serviceman or servicewoman to disobey superior orders, if those orders are manifestly unlawful under LOAC (i.e. clearly illegal under LOAC to an ordinary person with ordinary common sense).[110] This is because the LOAC constitutes the highest law governing armed conflict in the world today and is the ultimate legal standard internationally for the lawful conduct of war.
Within the vast body of International Law (IL) that exists today, LOAC is the field of law that governs all international relations concerned with armed conflict, and is comprised of all international law relating to the existence and conduct of all armed conflict and military occupation.[111] It is comprised of:
- international treaties, agreements, pacts, conventions and protocols (including the 1948 Genocide Convention as well as the 1949 Geneva Conventions and their 1977 Additional Protocols);
- international customs or practices that are so consistently repeated in modern warfare that they are accepted by States as binding law, also known as ‘Customary International Law’ (CIL);
- common principles of law generally recognised by civilised nations;
- judicial decisions of international courts; and
- the writings of highly-qualified legal experts.[112]
The laws contained in the LOAC applies in all military situations, whether or not war has been formally declared or recognised.[113] All LOAC laws and conventions ratified by a State are binding on their national armed forces and must be applied and adhered to at all times – during peacetime, during war, and during all the various stages of the war spectrum in-between, ranging from non-kinetic and non-traditional peacekeeping operations, at one end of the spectrum, to overtly kinetic, offensive warfare operations, on the other.
According to the LOAC, certain obligations and rights apply to all States and all individuals at all times, regardless of whether or not a state of armed conflict exists, whether or not the State or individuals are parties to a conflict, and lastly, due to binding obligations that exist under CIL (see endnote), whether or not the governments of the nations involved have ratified particular LOAC treaties.[114] Under the LOAC, all service men and women on military operations worldwide have a personal duty and obligation to act lawfully by obeying the LOAC during an armed conflict, even to the extent of disobeying national superior orders that are perceived to be manifestly unlawful under LOAC.
With regard to the events that took place in the Srebrenica UN Protected Area, the LOAC states that all States and all individuals are obligated at all times – during peacetime, during war, and all the various stages in-between – to prevent, suppress and punish the crimes of genocide (the intent to destroy a part or whole of a national, ethnic, racial or religious group) and to prevent, suppress and punish crimes against humanity (widespread and systematic attacks against a civilian population, including murder, extermination, enslavement, deportation, torture, rape, sexual slavery, enforced prostitution, enforced pregnancy, enforced sterilization, other sexual violence of comparable gravity, persecution, enforced disappearance and other inhumane acts intended to cause great suffering or serious injury to the civilian population).[115]
Indeed, the obligation to prevent and punish genocide wherever and whenever it occurs is considered so ‘super-strong’ and authoritative under the LOAC, it has become universally-accepted as a bedrock principle and international norm in CIL.[116] All orders from superior officers to commit or allow genocide and/or crimes against humanity are manifestly unlawful and must never be obeyed. In these cases, the claim of ‘superior orders’ will not protect or relieve any individual of personal criminal responsibility.[117] The principle of ‘military necessity’ can likewise never be used as a defence for committing or allowing breaches of these absolute rules of the LOAC.[118]
Similarly, orders given by national military commanders, including ROE, must comply with, and uphold, the LOAC at all times (for a more thorough examination of the LOAC’s influence on the formation and enforcement of national ROE, see blog “#12 The Binding Power of Rules of Engagement: Enforcement & Punishment”). Under the LOAC, military commanders have ‘Command Responsibility’ for acts in breach of the LOAC that: (a) he or she commits personally; (b) he or she orders; or which (c) were committed under the commander’s effective control where (1) the commander ought to have known that those forces were committing or about to commit a crime, or (2) failed to take all necessary and reasonable steps within his or her power to suppress the crime or cause it to be investigated and prosecuted.[119]
In sum, under the LOAC, it is the responsibility of all to prevent war crimes, whenever and wherever they occur, or are about to occur, and to report all violations.[120]
A crime against the LOAC, through non-adherence to the laws governing the rules, means, methods, or protection of persons and objects within a conflict, is considered a ‘war crime’, punishable in most States by a mandatory sentence of life imprisonment if it involves wilful killing (the same penalty as for murder), or a lesser term if it concerns allowing or inflicting inhumane treatment, great suffering, extensive destruction, or depriving protected persons of their rights under LOAC.[121] Because there is no statute of limitations on crimes against the LOAC, individuals can be tried for breaches of LOAC throughout their lifetimes, no matter how many years or decades have passed since the breach or breaches occurred.[122] The individual can be tried for war crimes either in a national court, or an international court such as the UN’s International Criminal Court (ICC) for the prosecution of war crimes, if the individual belongs to a State that, like the Netherlands, has ceded some political and legal sovereignty by signing on to certain international legal conventions (e.g. the 1998 UN Rome Statute establishing the ICC) and that State has committed the case to the jurisdiction of the ICC because it is ‘unwilling’ or ‘unable’ to prosecute the individual in a domestic court.[123]
Following the horrific genocide in Srebrenica, which in nine days resulted in the execution of 8,000 male civilians, most of whom were unarmed non-combatants, these abiding and resilient facts would consequently have held steadfastly true and applicable during any court martial trial in a domestic civilian or military court of law undertaken by the Netherlands, against any individual soldier of the DutchBat III battalion deployed to the Srebrenica UNPROFOR Protected Area, who had disobeyed Karremans’ unlawful orders in order to uphold the LOAC and defend the protected civilian population from the war crimes of genocide and crimes against humanity.
Srebrenica & the “Wall of Silence” in the Netherlands
Despite the international outcry and criticism of Dutch UN military forces in Srebrenica following the genocide in July 1995, when the DutchBat III Protection Forces returned to Holland from Bosnia that same month, they were greeted by the Dutch royal prince, Prince Willem Alexander, and praised for their accomplishments in Srebrenica.[124]
Eleven years later on 4 December 2006, LTCOL Karremans and all of the veterans of the DutchBat III deployment to Srebrenica from January-July 1995 were decorated with special military medals for their service in Srebrenica ‘in recognition of their behaviour in difficult circumstances’.[125] During the ceremony the new Dutch defence minister, Henk Kamp, of the ruling Jan Peter Balkenende government, reportedly stated that ‘Dutchbat has for years wrongly been held responsible for what happened in the enclave’ and further claimed that the battalion was ‘powerless to prevent the massacre’.[126] The decoration of 500 members of the 850-strong DutchBat III contingent led to a formal protest from the Presidency of the Bosnian government of Bosnia and Herzegovina, who summoned the Dutch Ambassador to Sarajevo to receive their complaint.[127] The “Mothers of Srebrenica” organisation also condemned the decoration of the battalion, exclaiming that Dutch deeds in Srebrenica belonged in the ‘Hall of Shame’ and that the Dutch are rewarding something ‘the entire world would be ashamed of.’[128]
The Dutch Parliament in The Hague.[129]
This seeming denial of reality in the Dutch Establishment and strong aversion to a genuine acceptance of, at the least, partial culpability in Holland for the human catastrophe that occurred in Srebrenica, has continued to abound in The Hague since 1995. Indeed, it has been argued that in the decade following the horrific events in Srebrenica a so-called ‘wall of silence’ has been erected around the events that transpired under Dutch command in the UN enclave by government and military officials alike in the halls of power in The Hague, and that this wall of silence regarding the Srebrenica disaster is so extensive that it even exists further afield within the Dutch nation at large.[130]
The most telling sign of this is perhaps the lamentable fact that, until this very day in 2018, the Dutch State has never offered a formal apology to all of the Bosniak victims or their surviving relatives, for the role of Dutch UN military forces in: first, failing to defend militarily the Srebrenica UN Protected Area and prevent or halt the Serb invasion of the enclave; and, secondly, passively standing by and allowing Bosnian Serb fighters to conduct savage mass executions and gang rape of the Bosniak civilian war refugee population – civilians that Dutch forces had specifically been deployed to Bosnia in1995 to defend and protect militarily from aggression in an active warzone in a UN ‘safe area’ enclave that was their own designated AOR under the UNPROFOR mandate. Indeed, even during the mass government resignations that followed the publication of the NIOD report in 2002, no formal apology was ever given by PM Kok or other members of the Dutch government to the tens of thousands of Srebrenica victims or their families, who had suffered grotesque abuses at Serb hands due to widespread timidity and apathy, both within the Dutch government at home in The Hague, and abroad among the military commanders of the Dutch UNPROFOR contingent stationed in the Srebrenica safe zone in Bosnia.
This pervasive silence, omission of admission, refusal to apologise, and failure to consider the issue of redress to the victims of crimes committed under Dutch command in the Netherlands, prompted one Amsterdam attorney, Axel Hagedorn, to remark in 2006 that the issue of reparations to victims is not discussed in the Netherlands and that ‘hardly anyone thinks about the many people who were killed or who lost their families due to the woeful behaviour of the Dutch troops’.[131]
As for the Dutch National Commander, LTCOL Karremans, far from being disciplined, demoted or prosecuted for his poorly-judged and even criminally-negligent decisions in Srebrenica, with respect to the LOAC and Karremans’ failure to prevent, halt, punish or even to report the Bosnian Serb campaign of genocide taking place within his own UN AOR over nine successive days from 11-19th July 1995, the military chamber of the Dutch High Court in Arnhem ruled on 29 April 2015 that Karremans ‘could not be held criminally liable on grounds of command responsibility’ and ‘should not be prosecuted for involvement in the slayings’.[132]
In sum, the Dutch military and successive Dutch governments have defended their own poor pre-deployment decisions, including their interpretation of the Chapter VII UNPROFOR safe area mandate and their subsequent ROE instructions and caveats, and have honoured and protected LTCOL Karremans, his subordinate commanders, and the DutchBat III contingent as a whole during the past 23 years. This is in spite of the abiding fact that Dutch national forces’ performed a crucial and permissive role in allowing genocide to take place – without any defensive, kinetic, military action to prevent, halt or punish it – against a civilian population sheltering in a UN Protected Area that Dutch UN forces were mandated and deployed to protect. This astounding reality in Holland led international researchers from one large Srebrenica research project to remark that:
‘The Netherlands, the country which hosts the International Court of Justice (ICJ), has failed to question the acts of Dutch troops and their commander […] Thom Karremans who served in the UN peacekeeping force that failed to prevent the Srebrenica Massacre’.[133]
Legal Earthquake Challenges Dutch Indifference
In 2006 a legal and political earthquake shattered attempts by Dutch politicians and military officers to ‘keep a lid on it’, however, when the largest independent law firm in the Netherlands, Van Diepen/Van der Kroef based in Amsterdam, led by attorneys Axel Hagedorn and Marco Gerritsen, announced their intention to sue both the Dutch government and the UN organisation in the civilian district court of The Hague and seek financial compensation on behalf of thousands of surviving victims, and family members of executed victims, of the Srebrenica disaster in the UN Protected Area.[134] In so doing, Hagedorn and his staff declared that they were ‘attacking’ the Dutch ‘wall of silence’ about the Srebrenica disaster, adding that:
‘It’s not going to be a picnic of us. After all, many people in the Netherlands do not want to be reminded of the events in Bosnia’. [135]
After two years of compiling information and interviewing Srebrenica victims, in June 2008 the Van Diepen/Van der Kroef legal firm filed a 228-page class action lawsuit against the Dutch State and the UN organisation on behalf of 7,930 Srebrenica clients, alleging that: ‘Although the Serbs’ murderous intentions were known, neither the Dutch, as a protective power, nor the UN, as the organisation providing the mandate, took steps to save the local population.’[136] The attorneys sought financial compensation of some €25,000 in initial damages for each plaintiff, as well as additional compensation for overall damages, for what they described as the ‘worst genocide since World War II.’[137]
Axel Hagedorn (left), Marco Gerritsen (right) and Maunira Subasic from the “Mothers of Srebrenica” (centre) walking with other attorneys towards the Supreme Court of Holland in The Hague to deliver a civil summons there in June 2007.[138]
In the suit, the Dutch UNPROFOR forces were portrayed as criminally negligent troops who played a ‘disgraceful role’ in the massacre, in that they had an obligation to protect the Bosnian civilians under their control and to prevent genocide, but instead they simply ‘handed over the population to the bloodthirsty Bosnian Serbs.’[139] The relatives claimed that in contravention of Bosnian law, European law, the Geneva Conventions, and the 1948 UN Convention on Genocide, the Dutch UNPROFOR contingent knowingly left their loved ones ‘exposed to the enemy.’[140] The Dutch were negligent, they claim, because ‘they had a humanitarian assignment, but acted contrary to their instructions.’[141]
The lawsuit highlighted a number of key failures by Dutch UN forces in particular, namely that:
(1) The Dutch government exposed Dutch soldiers, who they consider to have been ‘completely unprepared people’, to a war situation where ‘serious shooting was taking place’;
(2) In contradiction to their UN orders, Dutch UNPROFOR forces did not protect the civilians at the Srebrenica Protected Area, thereby causing the population sheltering there to become an ‘unprotected target’ for the Serbs;
(3) Dutch UNPROFOR forces were slow to report the atrocities being committed in the Srebrenica Protected Area, meaning that no additional help or reinforcements were dispatched by the UN to Srebrenica; and lastly that
(4) Some Dutch military personnel collaborated with the Serbs.[142]
In addition to the testimony of surviving witnesses with regard to several DutchBat soldiers, this last charge of ‘Dutch collaboration’ with the aggressors was lent additional credence by the fact that the Dutch National Commander, LTCOL Karremans, was photographed drinking an alcoholic toast with the general of the invading Bosnian Serb forces, GEN Mladic, at Potocari village within the UN Protected Area on 12 July 1995 – three days after the Serb invasion and while Serb forces were ‘wreaking havoc’ and committing genocide outside.[143] The toast was rumoured to have been made after Karremans struck a deal with Mladic to hand over and exchange the lives of the 5,000 unarmed Bosniak civilians sheltering at the main UN compound at Potocari for the lives and safety of approximately 30 DutchBat soldiers who, on LTCOL Karremans orders, had surrendered to the Serbs during the previous days, and were now being held in custody and ‘well treated’ at local hotels around the area.[144]
This ignoble deal is made even worse in the light of the fact that it was unnecessary. The 30 DutchBat personnel held in the custody of the Bosnian Serbs in nearby towns were not considered by the Serbs to be ‘Prisoners of War’, as the Bosnian Serb Army’s (BSA) Head of Security, Colonel (COL) Zdravko Tolimir, communicated to the UNPROFOR Commander’s Chief of Staff, but rather soldiers who had ‘simply requested the BSA’s assistance’ and who were therefore ‘free to leave’ and return back to the Netherlands via the airport in Belgrade at any time.[145] Indeed, the personnel from OP Sierra and OP Uniform had been given this offer and had radioed this information back to their National Commander at headquarters in the Srebrenica Protected Area from their hotels on 9 July. [146]
The “Toast” of Shame: Bosnian Serb General Ratko Mladic (a.k.a. “The Butcher of Bosnia”, far left) drinks an alcoholic toast with Dutch UNPROFOR Commander, Lieutenant-Colonel Thomas Karremans (centre), at the main UN compound located at Potocari village within the Srebrenica Protected Area on 12 July 1995.[147]
In short, the Dutch battalion was portrayed in the Srebrenica victims’ lawsuit as:
‘A force that was incompetent, disinterested and solely concerned about the health and wellbeing of its own soldiers.’[148]
Or as one of the attorneys for the surviving Srebrenica victims has also stated:
‘The Dutch had only one goal from the start, namely to get all their soldiers home in one piece’. [149]
Dutch governments have responded to these charges in court by contending that failure by national military contingents contributed by a State to a UN mission does not equate to national liability for the Troop Contributing Nation.[150]
In other words, successive Dutch governments claim that a Dutch government, or by extension the Dutch State, can not be held accountable for the mistakes and failures of their own DutchBat III UNPROFOR forces in their security and “protection mission” tasking while operating on behalf of the UN in Bosnia.
Indeed, according to the Dutch government, only the UN is liable to pay compensation – not the Dutch State.[151] Dutch forces were contributed to the UN to conduct a UN mission, they claim, and were subsequently ‘abandoned by the UN.’[152]
For its part, the UN’s response to this assertion by officials of the Dutch State has been to claim that none of its UN officials can be held responsible for events in Srebrenica and to invoke its legal immunity. [153]
A Ground-breaking Ruling – with International Implications
After hearing the case, the district court in the Hague made a ground-breaking ruling in September 2013 by judging that the government of PM Mark Rutte must pay compensation to surviving family members of three victims of the Srebrenica Massacre – UN employee Riza Mustafic and two male relatives of UN employee and translator Hasan Nuhanovic – who were all summarily executed when Dutch Protection Forces failed to protect them, by expelling them from the UN buildings of the Potocari compound into the hands of Serb death squads, within the Dutch designated safe-haven in Bosnia.[154] In its first and only limited apology ever offered to any Srebrenica victim or their families, the Dutch State subsequently apologised to the relatives of the three murdered men, by means of Defence Minister Jeanine Hennis-Plasschaert who said publicly that ‘the State regrets that Mustafic and the Nuhanovics had to leave the compound’, and paid €20,000 in compensation to both families.[155]
Although the Dutch court had at this time only acknowledged that Dutch forces failed three of the multitude of tens of thousands of victims who were either raped or murdered in Srebrenica, this ruling in 2013 was nevertheless historic.
In short, the ruling set a new precedent whereby nations that have contributed military forces to international security missions – present or historic – may be legally and financially held accountable and liable for the misconduct of their deployed forces and any ‘failure to protect’ while assigned to mandated tasks during these multinational military missions.
This suggests that victims of other disasters and failures within international security operations, in which national military forces operating as part of the UN or NATO failed to provide the robust military protection they were mandated to provide, for example within the UN Assistance Mission in Rwanda (UNAMIR) or NATO’s Kosovo Force (KFOR) operation, may also follow suit and seek redress and financial compensation from negligent and culpable nations and even the overarching collective security organisations themselves.
Indeed, if legal action was taken with regard to caveated-forces within the NATO-led International Security Assistance Force (ISAF) mission in Afghanistan and the way in which, due to severely restrictive caveat constraints imposed by risk-averse governments, many of these national contingents failed in their primary security tasking over the course of more than a decade to conduct combat and security operations in order to secure their Regional Commands, and thereby offer the local Afghan civilians real, physical, military protection from known Taliban and/or insurgent offensives, persecution, night intimidation, beheadings and acts of terrorism, financial penalties could be hefty for a large number of NATO countries – most especially Lead Nations Germany (RC-North), Italy (RC-West) and France (RC-Capital), as well as Supporting Nations Hungary (RC-North) and Spain (RC-West) among many others.
[For more information on the woeful behaviour of caveat-imposing NATO Lead Nations in Afghanistan, in terms of their failure to carry out their security tasking towards their primary security objective of establishing and maintaining security in their Regional Command sectors, see Chapters 11- 13 (Volume I, pp. 254-344) and Appendix 12 (Volume II, pp. 215-244) of my doctoral research which addresses the impact of ISAF national caveats on the operational effectiveness of the ISAF operation over a decade of warfare from 2002-2012, freely accessible here: http://mro.massey.ac.nz/xmlui/handle/10179/6984]
In other words, in the future national governments may have to pay financially for the military negligence and inaction shown by national military forces while deployed on UN or NATO ‘protection’ or ‘security’ missions, particularly where national contingents have acted counter to their MNO mandate and tasking, or when they have been prevented from acting by ROE constraints imposed by governments that have prioritised the safety of their own armed and trained combat soldiers (who are in essence ‘professional killers at arms’) above the safety of unarmed, defenceless civilians, who are in life-threatening danger or peril, and are reliant on those deployed and mandated security forces on the ground to protect them from armed, hostile, belligerent forces.
Although this is a somewhat revolutionary concept in the sphere of international security operations today, legal and financial redress and compensation to civilian victims that governments have been obligated to defend with their military forces on paper, but failed to protect on the ground in practice, may in fact be a fitting and just consequence – with long-lasting corrective and curative power – for governments and for nations which have shown a tendency to be self-focused and self-serving in their decision-making, after having committed to an international security campaign and deployed armed forces to act in concert with allies as part of a MNO in a given conflict theatre.
Final Verdict of the Dutch Court of Appeals: Holland Guilty of Negligence & Failure to Protect
In 2014 after hearing thousands of cases, the Dutch civilian district court ruled further that Dutch soldiers acting as UN peacekeepers were ‘partly liable’ for the deaths of approximately 300 Muslim Bosniak men at the main UN compound in Potocari and ordered that the Netherlands pay damages to the families of these Potocari victims.[156]
Soldiers of the DutchBat III combat battalion survey the crowds of Bosnian war refugees in 1995 at the Potocari compound within the Srebrenica UN Protected Area, as they sit as UN representatives and “Protection Forces” under the UN flag.[157]
Approximately 5,000 (10%) of the total 50,000 war refugees who had fled to the designated UN Protected Area in and around Srebrenica in 1993-1995, had allowed themselves to be unarmed by the Dutch soldiers in order to be given admittance into the central, fenced and guarded, UN compound in Potocari. When the Serbs invaded the Srebrenica enclave, desperate hordes of refugees fled to the Potocari compound seeking greater UN protection, but were refused entry and turned away by the Dutch UN soldiers at the gates. However, even those admitted into the Potocari compound were not truly safe. Within hours of the Serb invasion, the men and boys sheltering at Potocari were handed over or expelled by the Dutch for execution at the hands of the genocidal Serb militia – without a fight or any attempt by the Dutch soldiers to defend them.
The Dutch State refused to accept this ruling of partial liability, however, and promptly appealed the verdict at The Hague’s Court of Appeals. Nevertheless, three years later in June 2017, this second court of law upheld the original verdict against the Dutch State. The Court of Appeals ruled that the Dutch State was indeed ‘partially liable’ for the genocide in the Srebrenica safe haven, specifically for the deaths of 300 Bosniak men sheltering under Dutch protection at the Potocari UN compound within the Srebrenica UN Protection Area.[158] In the words of Judge Gepke Dulek-Shermers, Dutch UNPROFOR soldiers:
‘Knew or should have known that the men [within the Potocari compound] were not only being screened…but were in real danger of being subjected to torture or execution…By having the men leave the compound unreservedly, they were deprived of a chance of survival.’[159]
The Hague Court of Appeals ruled, furthermore, that Dutch UN soldiers had been complicit in the genocide at Srebrenica, in the fact that Dutch soldiers assisted the Serbs in their separation of the men and boys, destined for execution, from the women and girls, destined for gang rape or expulsion, within the UN Protected Area. [160]
The Srebrenica-Potocari Memorial and Cemetery containing the remains of over 8,300 victims killed during the genocide, situated in Srebrenica near to the old UNPROFOR Potocari compound that had been manned by DutchBat III from January-July 1995.[161]
These two rulings were each ground-breaking in holding to account a Troop Contributing Nation whose caveat-fettered forces failed to robustly conduct their assigned security tasks within a UN operation.
Nevertheless, the rulings have not gone far enough to satisfy the families and relatives of Srebrenica victims, who maintain that the Dutch State should also be held responsible and liable for their failure to protect at least 7,000 other desperate Bosniak men gathered outside the main gates of the Potocari UN compound, who were refused entry to the compound.[162] As Munira Subasic, a survivor whose son was murdered in Srebrenica, stated: ‘This is a great injustice. The Dutch state should take its responsibility for our victims because they could have kept them all safe on the Dutchbat compound’.[163] As the facts plainly show, however, even admittance into the Potocari compound was no safeguard of life or guarantee of protection by Dutch forces at all – 300 male refugees within the fenced Potocari compound lost their lives after the Dutch Protection Forces declined to protect those in their care and handed them over into the custody of the blood-thirsty Serb militia forces. Dutch forces guarding the compound lacked the ROE, the will, and the iron resolve to provide a robust military defence of their civilian charges.
Indeed, this claim by the relatives of Srebrenica victims was rejected by the Dutch Court of Appeals on the grounds that there was a 70% probability that the Bosniak men would have been ‘dragged from the base’ and murdered by the Serbs ‘regardless of what action Dutch soldiers took’, and even if the Dutch forces had mounted a serious and robust military defence of the refugees at the perimeter of the enclave or at the two UN compounds within the safe area.[164] On these grounds the judges at the Court of Appeals acquitted the Netherlands of responsibility for the deaths of more than 7,000 other male Bosniak victims, who had also been killed in the Srebrenica UN Protection Area under Dutch Command.[165] As a consequence of this estimation, the Court of Appeals also drastically diminished the financial compensation to be given to the families of the Srebrenica genocide victims, ordering that the Netherlands pay only 30% of the damages that the civilian district court had originally ordered be paid to the victims’ families.[166]
Gerritsen, the attorney who represented the Bosniak families, afterwards stated that he found the court’s poor assessment of the Bosniak men’s chances of survival – even given robust Dutch military action – ‘very arbitrary’.[167] Gerritsen and his clients are now considering appealing the Court of Appeals judgment on this point at the Dutch Supreme Court.[168] Unless the Srebrenica victims and the Dutch State reach a settlement, the final amount of damages to be paid to the Srebrenica victims will be determined in a future separate hearing.[169]
Despite this June 2017 ruling by the Hague’s Court of Appeals, which upheld the original 2014 ruling of partial culpability and liability of the Dutch State in the tragic events that took place within the UNPROFOR mission in Srebrenica, the response by Dutch governments in the Netherlands has been to maintain that the Bosnian Serbs alone – not the Dutch troops – ‘bear responsibility for the killings’.[170] Interestingly, the ICTFY war crimes tribunal in The Hague has likewise made a point of placing principal responsibility for the genocide at the feet of senior officers in the Bosnian Serb Republika Srpska militia army. [171] The legal legacy of the Srebrenica genocide does not end here however. In the months following the Supreme Court’s verdict described above, the Dutch government re-appealed the ruling of their Court of Appeals, asking the nation’s Supreme Court to overturn their ruling that the Netherlands was ‘partly responsible’ for the deaths of the 300 Bosniak men gathered at the UN Potocari compound.[172] The Dutch Ministry of Defence asserted, through its spokesman Klaas Meijer, that: ‘We do not share the judge’s opinion that Dutch U.N. peacemakers acted unlawfully and we do not understand how the court reached that verdict.’[173]
Traumatised Dutch Soldiers Sue the Dutch State
In June 2016 another important and unexpected development occurred as a result of the Srebrenica legacy in Holland. In an historic court case, 12 of the Dutch UNPROFOR soldiers stationed in the Srebrenica UN Protection Area in July 1995 sued the Dutch State and demanded restitution and compensation for the trauma and suffering they had endured as a result of the Srebrenica genocide.
In their lawsuit before an independent judge, the veterans, all low-ranking corporals and warrant officers at the time of the Srebrenica deployment in 1995, and their lawyers, Michael Ruperti and Klaas Arjen, accused PM Kok’s Labour government of being ‘seriously negligent and careless’ in 1995 by knowingly sending them on what they now deemed a ‘hopeless’, ‘unfeasible’ and ‘impossible’ mission in Bosnia.[174] The lawsuit claims, first of all, that the DutchBat III battalion was ‘sent on a hopeless mission without being adequately prepared, without adequate resources and capabilities, and with a weak information position’.[175]
Secondly, the suit charges that because of the decisions and actions of the Dutch government before and during the mission, ‘the soldiers were unable to protect the civilian population and themselves’, and as a result, ‘passively had to watch a humanitarian disaster unfold before their eyes’. [176] In other words, true culpability for the Srebrenica disaster belongs to decision-makers in the Dutch government and in the Dutch military chain of command, not the soldiers deployed on the ground, since it was the crucial decisions made by these power-holders in 1995 that caused them to be placed in such an impossible position during the Bosnian War, being bound by extremely strict national caveats in their ROE that forbade them absolutely from mounting any military defence of the Bosniak civilians in the Protection Area, and further, forbade them even from firing the weapons they had and using lethal force to kill attacking Bosnian Serb aggressors in unit or individual self-defence.
Impotent Spectators of Savagery: Caveated Dutch UNPROFOR Protection Forces become powerless spectators of Serb barbarism against the Bosnian civilian population gathered at the UN Protected Area and ‘safe haven’ in Srebrenica, July 1995.[177]
Thirdly, because of the government’s failure to own up to its own mistakes in the two decades since the Srebrenica disaster, the suit charges that soldiers of the DutchBat III battalion have been unjustly held responsible for the failure of the mission for over 20 years, causing the veterans to suffer ‘irreparable harm socially, emotionally and financially’.[178] Although the civilian men, women and children sheltering in the Srebrenica safe area were clearly and demonstrably the main victims of the events in Srebrenica in July 1995, the DutchBat III veterans argue that their lives have also been changed forever as a result of being present during those events.[179] Many of them have struggled under a tremendous sense of guilt, blaming themselves for key decisions which in large part were in fact made by their superior commanding officers in Bosnia and Holland and by their civilian government leaders in The Hague.
Indeed, the reality is that many of the Dutch, caveat-bound, UNPROFOR soldiers have suffered psychological trauma from the genocidal killings and rapes that they were compelled to witness as ‘silent spectator-soldiers’ in Srebrenica. In fact during the decade following the Srebrenica Massacre, 40% of all the DutchBat III soldiers needed psychological help, including years of counselling, to overcome the sights, sounds and powerlessness they experienced in Srebrenica. In a Dutch book entitled ‘Herinneringen aan Srebrenica’ (‘Memories of Srebrenica’), one such soldier recounts that for ten years after the massacre he remembered the trauma of Srebrenica every single day. As he states: ‘A noise, a smell, something that catches my eye, is enough to bring me straight back to that day.’[180]
In addition to ‘mental injuries’ sustained as powerless spectators in Srebrenica, as well as ‘horrific memories’ of the genocide, many DutchBat III soldiers have also suffered mental anguish as a result of public condemnation of their conduct in Bosnia, in the way that the Dutch UNPROFOR battalion failed in their mission to protect the Srebrenica Protected Area and the civilians sheltering there from military aggression and ultimately genocide.[181] As Zomer, states: ‘When you hear – for 20 years now – only about bad things that you do, that makes you stressed, crazy’.[182] The combined trauma of these realities has been so distressing that some veterans have found it difficult to work in the civilian world and to hold down their jobs, while others have gone to the extreme of killing themselves in acts of suicide (self-murder).[183]
Fourth, the ground-breaking veteran lawsuit additionally claims that the existing internal arrangements made by the Dutch Defence Force to compensate DutchBat III veterans of Srebrenica are ‘not sufficient in this matter’ and, fifth, charge that it is ‘unacceptable that the government could judge its own role in the massacre and decide for themselves how the veterans would be compensated’.[184]
Lastly, the veterans charge that the steps the Dutch Defence Force took and the new regulations imposed after the 1995 Bosnian deployment, upon the basis of its own process of self-evaluation, have been ‘insufficient’.[185]
By the time of the Court of Appeals verdict handed down against the Dutch State last year in June, as described above, the number of Dutch army veteran claimants in this lawsuit against the Dutch State had swelled from 12 soldiers in 2016 to 200 personnel in 2017 – equating to two companies of the battalion’s combat infantry.[186] These 200 veterans of Srebrenica are claiming financial compensation from the Dutch State to mitigate the trauma and Post Traumatic Stress Disorders (PTSD) they have suffered as a result of the risk-averse and negligent decisions made by the Dutch government in 1995, which led directly to their powerlessness and adherence to a policy of passivity during an unfolding human tragedy in the UN Protection Area. According to Ruperti, these men ‘are campaigning for a “symbolic” €22,000 (£19,500) each – or €1,000 for every year since the massacre took place, bringing the value of the total suit to €4.5 million’.[187]
In a somewhat astounding twist, this lawsuit by the 200 DutchBat III veterans against the Dutch State has been supported by the former DutchBat III National Commander, LTCOL Karremans. After having been himself protected by the military chamber of the Dutch High Court and exempted from prosecution as a war criminal for breaches of LOAC that occurred in the UNPROFOR Srebrenica AOR under his command, on the basis of Command Responsibility, Karremans was last year reportedly also considering joining the ‘soldier suit’ to sue the Dutch State and seek redress and compensation for his sufferings as a result of the 1995 Srebrenica deployment.[188]
Government Response to the Soldier Suit
The Dutch Defence Force has declined to comment on the court case of the 200 DutchBat III veterans from Srebrenica. However the Defence Minister in 2016, Jeanine Hennis-Plasschaert, appears to have followed in her infamous predecessors’ wake and has similarly avoided admitting to the degree to which the Dutch government and its commanders were culpable in the awful events of Srebrenica.[189]
Hennis-Plasschaert has placed the blame for mission failure in Srebrenica squarely at the feet of others, rather than those of Dutch politicians or military commanders, this time the UN organisation, claiming that the UNPROFOR mission in Bosnia to guard civilian war refugees at the Srebrenica UN Protected Area was ‘already impracticable beforehand.’[190] As she said in a public statement in 2016, the Srebrenica UN Protection Mission was one ‘that – already in advance – was impossible to do’.[191] However, this is a one-eyed – and somewhat fictitious – defence of Dutch comportment in Srebrenica. Statements such as these jar with the Kok government’s assessment prior to the Bosnian deployment, that in deploying to the UNPROFOR Srebrenica safe area the Netherlands was committing itself to an ‘honourable, not easy but certainly feasible, task.’[192] Indeed, prior to the deployment, many Dutch governments ministers ‘strongly believed’ in the feasibility of securing the defence of the safe areas ‘with the aid of air support’. [193]
In short, the response of the Dutch government to the role of Dutch military forces in the Srebrenica genocide remains to smear the whole UNPROFOR mission in Bosnia, and to admit neither to the poor choices made and the inappropriate ROE imposed by the Kok government, nor the immoral orders given, the extremely crippling caveats enforced, and the dishonourable conduct shown by the DutchBat National Commander before and during the genocide in the Srebrenica UN Protection Area. As Dutch historians Christ Klep and Eelco Runia concluded as late as 2015: ‘For the time being, the Dutch are reluctant to recognize this ‘black-black page’ in our national history. There is a tendency in public opinion to speak somewhat of the share of the Dutch government and military personnel – to make the black page grey [emphasis added]’.[194]
Minimisation and avoidance of the real underlying issues that permitted the savage Srebrenica genocide to take place under Dutch command within a UN-protected safe zone, appears to remain the state of play in Holland today.
Dutch Transformation: From ‘Cowardice’ to Courage
In closing this analysis of the aftermath of Srebrenica in the Netherlands, it is of worth to underscore one positive consequence of the Srebrenica legacy in Holland. Namely, that the charges of cowardice and incompetence against the Dutch government in its decisions and use of its military instrument since 1995 has had a real and tangible effect on the Netherlands and the policies of successive Dutch governments when contributing national military forces to subsequent conflict theatres and war-zones. As Robinson states:
‘The role of DutchBat — and its inability to prevent the worst atrocity in Europe since the Second World War — has hung over the Netherlands ever since. It has resulted in the resignation of a government, thousands of pages of official reports and multiple criminal and civil lawsuits. There have also been dribbles of compensation to the victims and stabs at self-justification. All are part of the reckoning as a country that long viewed itself as a force for decency in postwar Europe struggles with the shame of its failure. “Srebrenica is our scar,” says Colonel Ludy De Vos, an officer who served in the enclave before it fell. “We cannot get rid of it, but we can try to live with it”…Since Srebrenica, the Dutch military has developed a mildly masochistic streak, choosing to fight in Kosovo, Iraq and particularly hairy parts of Afghanistan. Mr De Vos says the country “lost its innocence” in the Balkans.’[195]
Indeed, during the ISAF international security campaign in Afghanistan from 2001-2014, the Dutch government concretely proved itself willing to commit its national military forces to the waging of offensive war against the Taliban. Despite initial hesitance and hurdles, in early 2006 Dutch forces bravely deployed to Uruzgan Province in the most hostile, volatile and feared sector of Afghanistan, Regional Command South (RC-South).
Some of the Dutch military forces who fought with honour and distinction against the Taliban and other Islamo-fascist insurgent forces in Uruzgan Province (RC-South) between 2006-2010 as part of the NATO-led ISAF operation in Afghanistan.[196]
Furthermore, when Dutch troops deployed to Southern Afghanistan, their government equipped them not only with the extremely important ‘robust mandate’ to conduct kinetic, war-fighting, combat operations, but also with ‘plenty of military hardware’ including ‘big weapons’, large APCs, helicopters and the F-16 and Apache helicopter gunships to provide Close Air Support.[197]
Lastly, and very significantly, from late 2006 onwards the troops operating in Uruzgan Province were permitted to operate without any of the political-legal caveat fetters that had been so decidedly instrumental and disastrous in Srebrenica. In fact, at NATO’s so-called ‘caveat’ summit in Riga in November 2006, during which NATO/ISAF commanders and the governments of the U.S. and U.K. pled with their ISAF coalition allies to reduce or remove harmful caveat restraints from their forces in Afghanistan, the Dutch government distinguished itself by entirely eliminating all of its ROE limitation and prohibition caveat constraints from its ISAF contingent in Afghanistan.
This decision to eliminate all caveat constraints from its national forces made the Dutch national contingent only one of a scant handful of caveat-free contingents within the ISAF coalition whose combat forces were able to operate free from ROE fetters and constraints in the conduct of their combat and/or security tasking and operations in Afghanistan. In fact, Dutch military forces operating in Uruzgan Province were given great freedom and flexibility by their government – even to the point of being enabled to engage in controversial counter-terrorist operations and with authority to use lethal force to kill terrorists outright on sight.[198]
As a result of these wise and supportive government decisions made in The Hague for the ISAF Counter-Insurgency (COIN) mission in hand, caveat-free Dutch forces fought hard against extremist, Islamo-fascist, Taliban forces in Uruzgan Province. Over a period of five, gruelling years of offensive warfare from 2006-2010, Dutch ISAF forces acquitted themselves with great valour and honour in the international struggle to combat fighters with extremist ideologies in Afghanistan, and thereby protect the new Afghan State, its brutalised population, and the wider world from Afghanistan-based terrorism.
One of the Dutch Special Forces (SOF) units operating as part of the Dutch ISAF national contingent to combat extremist Taliban and insurgent forces in Afghanistan.[199]
It could perhaps be said that the lesson of Srebrenica was truly heeded by the Dutch government, and took full effect, during the ISAF Afghan campaign, when Dutch military forces were given the flexibility and freedom of action they needed to operate effectively on the ground as combat forces during the Afghan War.
Indeed, during this recent Afghan multinational security campaign, it was the Germans, the Italians, the Turks, the French, the Spanish and the Hungarians – not the Dutch – that not only refused to carry their fair share of the combat burden in Afghanistan, but also bound their military forces with severe and inappropriate caveat restraints. As a result of being bound by these strict and on-going caveat constraints, the combat and security units of these nations’ ISAF military contingents conducted themselves poorly in their assigned Areas of Responsibility and failed to conduct effective security operations – to the detriment of the ISAF mission and at great and inestimable cost to Afghan civilians in their respective sectors and AOs.
Consequently, as the saying goes, by their politico-military transformation and courageous conduct in Afghanistan, the Dutch may well have turned their past Srebrenica ‘scars’ into present-day and heroic ‘stars’.
Nevertheless, despite this new development with regard to the greatly-improved and even valiant comportment of caveat-free Dutch forces in this recent international military campaign, the legacy of Srebrenica lives on. In spite of their proven record of heroism in Afghanistan, it seems that whenever and wherever Dutch military forces are committed to international security campaigns, Dutch military forces will for some time still – at least for the foreseeable future – be continuing to operate and fight under the shadow of Srebrenica.
* For more analysis on the issue of “national caveats” and their impact on the effectiveness of multinational military operations conducted in the interest of establishing and maintaining international peace and security, see Dr Regeena Kingsley’s original doctoral research in Defence & Strategic Studies (2014) entitled: “Fighting against Allies: An Examination of “National Caveats” within the NATO-led International Security Assistance Force (ISAF) Campaign in Afghanistan & their Impact on ISAF Operational Effectiveness, 2002-2012”.
Dr Kingsley’s full Thesis and its accompanying volume of Appendices can be viewed and downloaded from Massey University’s official website here: http://mro.massey.ac.nz/xmlui/handle/10179/6984
Endnotes
[1] N. Wood, ‘Bosnian Serbs Admit Responsibility for the Massacre of 7,000’, New York Times, 12 June 2004, http://www.nytimes.com/2004/06/12/world/bosnian-serbs-admit-responsibility-for-the-massacre-of-7000.html?mcubz=3, (accessed 13 March 2010).
[2] Modified image taken from ‘Map of Republika Srpska’ [online map], Flickriver.com, 26 June 2013 http://www.flickriver.com/photos/sukos_license_plates/9142974757, (accessed 23 August 2018).
[3] Wood, ‘Bosnian Serbs Admit Responsibility for the Massacre of 7,000’, op. cit.
[4] Ibid.; ‘P. Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, Independent, 18 June 2008, https://www.independent.co.uk/news/world/europe/the-big-question-why-are-dutch-soldiers-being-sued-for-the-massacre-at-srebrenica-849944.html, (accessed 7 May 2018).
[5] M. Simons, ‘Court Declares Bosnia Killings Were Genocide’, The New York Times, 27 February 2007, https://www.nytimes.com/2007/02/27/world/europe/27hague.html, (accessed 11 September 2018).
[6] Ibid.
[7] Ibid.
[8] Ibid.
[9] Ibid.; ‘Bosnia to appeal UN court ruling clearing Serbia of genocide’, The Telegraph, 17 September 2017, https://www.telegraph.co.uk/news/2017/02/17/bosnia-appeal-un-court-ruling-clearing-serbia-genocide/, (accessed 11 September 2018).
[10] Map of the Balkan region of South-East Europe [screengrab], Google Maps, 11 September 2018, https://www.google.co.uk/maps/place/Serbia/@44.1844413,19.964942,7.25z/data=!4m5!3m4!1s0x47571ddff2898095:0x55e50ea3723865d!8m2!3d44.016521!4d21.005859, (accessed 11 September 2018).
[11] ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: The Approach of Serbs’ Leadership’, TRT World [Interactive Slideshow], http://interactive.trtworld.com/srebrenica/index.html#eleventh, (accessed 29 January 2018).
[12] Ibid.
[13] Ibid.
[14] Ibid.
[15] F. Rudic, ‘Serbian Court Lets Landmark Srebrenica Trial Continue’, 4 October 2017, Balkan Transitional Justice, http://www.balkaninsight.com/en/article/trial-for-srebrenica-murders-to-continue-in-serbia-10-04-2017, (accessed 13 September 2018).
[16] Modified images taken from ‘Boris Tadić’, Wikipedia, 7 April 2018, https://simple.wikipedia.org/wiki/Boris_Tadi%C4%87, (accessed 14 September 2018) and ‘Tomislav Nikolić’, Wikipedia, 19 June 2017, https://simple.wikipedia.org/wiki/Tomislav_Nikoli%C4%87, (accessed 14 September 2018).
[17] ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: The Approach of Serbs’ Leadership’, op. cit.
[18] Ibid.
[19] ‘Bosnian Muslims bury 35 recently-identified Srebrenica massacre victims’, Evening Express, 11 July 2018, https://www.eveningexpress.co.uk/news/world/bosnian-muslims-bury-35-recently-identified-srebrenica-massacre-victims/, (accessed 7 August 2018).
[20] ‘U.S. Imposes Sanctions on Republika Srpska’s President Dodik’, RadioFreeEurope/RadioLiberty, 17 January 2017, https://www.rferl.org/a/dodik-republika-srpska-united-states-sanctions/28239895.html, (accessed 14 September 2018).
[21] ‘Bosnian Muslims bury 35 recently-identified Srebrenica massacre victims’, op. cit.
[22] Ibid.
[23] M.T. Cicero, De Officiis lib. i, sec. 23 (44 BCE) (S.H. transl.), cited in S. Horton, ‘Cicero on the Duty to Stand Against Injustice’, Harper’s Magazine, 24 October 2007, https://harpers.org/blog/2007/10/cicero-on-the-duty-to-stand-against-injustice/, (accessed 7 August 2018).
[24] Plato, cited in M.T. Cicero, ‘De Officiis’, in On Duties¸ M.T. Griffin and E.M. Atkins (eds.), Cambridge: Cambridge University Press, 1991, p. 12.
[25] Ibid.
[26] A. Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, Spiegel Online, 12 July 2005, http://www.spiegel.de/international/dealing-with-genocide-a-dutch-peacekeeper-remembers-srebrenica-a-364902.html, (accessed 26 April 2018); ‘Srebrenica Report – Summary for the Press’, NIOD, 10 April 2002, https://www.niod.nl/en/srebrenica-report/summary-press, (accessed 7 August 2018).
[27] D. van den Berg, ‘Under the UN Flag: The International Community and the Srebrenica Genocide’, Srebrenica Massacre, 1 June 2008, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/, (14 September 2017).
[28] ‘U.N., Dutch Complicity in Srebrenica Genocide’, Srebrenica Massacre, 5 June 2007, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/, (accessed 14 September 2017); A. Osborn & P. Brown, ‘Dutch cabinet resigns over Srebrenica massacre’, The Guardian, 17 April 2002, https://www.theguardian.com/world/2002/apr/17/warcrimes.andrewosborn, (accessed 7 August 2018).
[29] Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, op. cit.; M. Corder & A. Cohadzic, ‘Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of the massacre’, Independent, 9 July 2015, https://www.independent.co.uk/news/world/europe/srebrenica-20-years-after-the-genocide-the-dutch-peacekeepers-still-haunted-by-memories-of-the-10378913.html, (accessed 15 May 2018).
[30] Osborn & Brown, ‘Dutch cabinet resigns over Srebrenica massacre’, op. cit.
[31] Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, op. cit.
[32] Modified image taken from ‘Holland Plunges into Crisis’, DW.com, 17 April 2002, https://www.dw.com/en/holland-plunges-into-crisis/a-499195, (accessed 14 September 2018).
[33] ‘U.N., Dutch Complicity in Srebrenica Genocide’, op. cit.
[34] Osborn & Brown, ‘Dutch cabinet resigns over Srebrenica massacre’, op. cit.
[35] ‘Was the Dutch cabinet right to resign over Srebrenica’, BBC News, 22 April 2002, http://news.bbc.co.uk/1/hi/talking_point/1933211.stm, (accessed 7 August 2008).
[36] Ibid.
[37] Osborn & Brown, ‘Dutch cabinet resigns over Srebrenica massacre’, op. cit.; ‘Was the Dutch cabinet right to resign over Srebrenica’, ibid.
[38] Modified images taken from ‘Ratko Mladic Conviction Caps Decades of Grief Over Srebrenica Massacre’ [photo slideshow], NBC News, 23 November 2017, https://www.nbcnews.com/slideshow/ratko-mladic-conviction-caps-decades-grief-over-srebrenica-massacre-n823311, (accessed 29 January 2018) and D. Sim, ‘Srebrenica Massacre: Anniversary of 1995 Genocide Carried Out by Serb Forces During Bosnian War’, International Business Times, 10 July 2014, http://www.ibtimes.co.uk/srebrenica-massacre-anniversary-1995-genocide-carried-out-by-serb-forces-during-bosnian-war-1456177, (accessed 29 January 2018).
[39] U. Ludwig & A. Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, Spiegel Online, 5 June 2007, translated from German by C. Sultan,
http://www.spiegel.de/international/world/criminal-negligence-srebrenica-survivors-sue-netherlands-united-nations-a-486755.html, (accessed (14 September 2017).
[40] Government of the Netherlands, Koninklijke Landmacht/Royal Netherlands Army, 2018, https://www.defensie.nl/organisatie/landmacht, (accessed 29 April 2018).
[41] ‘Srebrenica Report’, NIOD, 2018, p. 1136, https://www.niod.nl/en/srebrenica-report, (accessed 7 August 2018).
[42] ‘Srebrenica Report – Summary for the Press’, NIOD, op. cit.
[43] Ibid.
[44] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[45] United Nations (UN), ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, UN Secretary-General Report to the UN General Assembly, 15 November 1999, pp. 53, 77, https://www.documentcloud.org/documents/324578-un-report-on-srebrenica-nov-1999.html (accessed 28 May 2018).
[46] Ibid., p. 53
[47] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[48] M. Ashkenazi, M Kösling & C. Kögler, ‘Potential for Violence: the Kalashnikov Curse’, D+C Development And Cooperation, https://www.dandc.eu/en/article/small-arms-and-light-weapons-cause-more-deaths-heavy-weaponry-developing-countries (accessed 29 June 2018).
[49] ‘Srebrenica Report’, NIOD, op. cit., p. 914.
[50] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[51] New Zealand Defence Force (NZDF), New Zealand Army Legal Officer (LO) Major (MAJ) Jane Derbyshire, ‘149.335: Methods of Warfare’, in ‘Section Five: Means and Methods of Warfare’, 149.335 Law of Armed Conflict, Centre for Defence Studies (CDS), Massey University College of Humanities and Social Sciences, Palmerston North, New Zealand, 2008, p. 28.
[52] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, op. cit., p. 51.
[53] Ibid., p. 65.
[54] Ibid.
[55] Ibid., p. 66
[56] Ibid., p. 102.
[57] Ibid., pp. 59, 60, 61.
[58] Ibid., p. 77
[59] ‘Srebrenica Report’, NIOD, op. cit., p. 2017.
[60] Modified images taken from Sim, ‘Srebrenica Massacre: Anniversary of 1995 Genocide Carried Out by Serb Forces During Bosnian War’, op. cit.; ‘Kaznom Za Zločine – Pravdom Za Žrtve’, Tačno.net, 27 June 2017, http://www.tacno.net/banja-luka/kaznom-za-zlocine-pravdom-za-zrtve/, (accessed 14 September 2017); and ‘Ratko Mladic Conviction Caps Decades of Grief Over Srebrenica Massacre’ [photo slideshow], op. cit.
[61] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[62] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, op. cit., p. 57, 61; ‘AICG Call to Indict General Janvier’, Bosnian Institute, New Series no. 1 (November-December 1997), http://www.bosnia.org.uk/bosrep/novdec97/indict.cfm, (accessed 14 February 2018).
[63] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, ibid., p. 67.
[64] Ibid.
[65] Modified images taken from ‘Joris Voorhoeve: Biografie’, Vereniging van Onderzoeksjournalisten’ (VVOJ), 2018, https://www.vvoj.nl/2010/10/08/joris-voorhoeve/, (accessed 30 June 2018) and United Nations (UN), ‘United Nations Photo: Portrait of Lt. General Bernard Janvier, Theatre Force Commander’, 8 March 1995, https://www.unmultimedia.org/s/photo/detail/295/0295770.html, (accessed 30 June 2018).
[66] Corder & Cohadzic, ‘Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of the massacre’, op. cit.
[67] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, op. cit., p. 66.
[68] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.; D. Robinson, ‘Dutch still grapple with the shame of Srebrenica’, Financial Times , 11 July 2015, https://www.ft.com/content/93a5c67a-26d2-11e5-9c4e-a775d2b173ca, (accessed 26 September 2017).
[69] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, ibid.; ‘AICG Call to Indict General Janvier’, op. cit.; United Nations (UN), International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991, Judgement: – Prosecutor v. Radislav Krstic,‘II. Findings of Fact: A. The Take-Over of Srebrenica and its Aftermath’, p. 11-12, para 34, http://www.icty.org/x/cases/krstic/tjug/en/krs-tj010802e.pdf, (accessed 26 April 2018); ‘Srebrenica Report – Summary for the Press’, NIOD, op. cit.; ‘Srebrenica Report’, NIOD, op. cit., p. 1774.
[70] ‘Srebrenica Report’, NIOD, ibid., p. 1774.
[71] Ibid., p. 1772-3.
[72] Ibid., p. 1773.
[73] Ibid., p. 1772.
[74] Ibid., p. 1773.
[75] Ibid., p. 1774.
[76] Ibid., p. 1776.
[77] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, op. cit., p. 102; U. Ludwig & A. Mertin, ‘“A Toast to the Dead”: Srebrenica Massacre Widows Sue UN, Dutch Government’, Spiegel Online, 4 July 2006, http://www.spiegel.de/international/spiegel/a-toast-to-the-dead-srebenica-widows-sue-un-dutch-government-a-425024.html, (accessed 6 February 2018); B. Crossette, ‘U.N. Details Its Failure to Stop ’95 Bosnia Massacre’, New York Times, 16 November 1999, https://www.nytimes.com/1999/11/16/world/un-details-its-failure-to-stop-95-bosnia-massacre.html, (accessed 29 April 2018); T. Switzer, ‘Srebrenica: The massacre that forced America to act after years of bloodshed’, ABC News, 9 July 2015, http://www.abc.net.au/radionational/programs/betweenthelines/srebrenica-massacre-forced-america-to-act-after-years-bloodshed/6600748, (accessed 30 January 2018).
[78] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.; ‘Srebrenica Report – Summary for the Press’, NIOD, op. cit.
[79] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, ibid.
[80] ‘Srebrenica Report’, NIOD, op. cit., p. 1833.
[81] Ibid., p. 1833.
[82] Ibid., p. 1834.
[83] Ibid., p. 1833.
[84] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.; D. Rennie, ‘Dutch honour ‘disgraced’ soldiers’, The Telegraph, 6 December 2006, https://www.telegraph.co.uk/news/worldnews/1536182/Dutch-honour-disgraced-soldiers.html, (accessed 7 August 2018).
[85] Corder & Cohadzic, ‘Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of the massacre’, op. cit.
[86] M. Tanner, ‘Outrage at medals for Dutch in Srebrenica’, Independent, December 2006, https://www.independent.co.uk/news/world/europe/outrage-at-medals-for-dutch-in-srebrenica-427267.html, (accessed 31 August 2018).
[87] Robinson, ‘Dutch still grapple with the shame of Srebrenica’, op. cit.
[88] Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, op. cit.
[89] Ibid.
[90] Ibid.
[91] Ibid.
[92] ‘‘A Slow-Motion Process of Genocide’’ started in 1993, Serbs Refused to Demilitarize (Resolution 819)’, Srebrenica Genocide Blog, 3 May 2010, http://srebrenica-genocide.blogspot.co.nz/2010/05/slow-motion-process-of-genocide.html, (accessed 12 February 2018); L. Dearden, ‘Srebrenica massacre: Dutch government ‘partially liable’ for murder of 300 Muslim men, court finds’, Independent, 27 June 2017, https://www.independent.co.uk/news/world/europe/srebrenica-massacre-dutch-peacekeepers-murder-300-muslim-men-serbia-bosnia-war-1995-appeals-court-a7809806.html#gallery, (accessed 15 May 2018).
[93] B. Waterfield, ‘Commander of UN forces ‘aware Srebrenica massacre about to happen’, The Telegraph, 8 November 2011, https://www.telegraph.co.uk/news/worldnews/europe/serbia/8877056/Commander-of-UN-forces-aware-Srebrenica-massacre-was-about-to-happen.html, (accessed 29 April 2018).
[94] Ibid.
[95] Ibid.
[96] Ibid.
[97] ‘Karremans eist excuus van minister Hennis van Defensie’ (‘Karremans demands an apology from Minister Hennis of Defence’), 11 July 2015, NOS Nieuws, https://nos.nl/artikel/2046361-karremans-eist-excuus-van-minister-hennis-van-defensie.html, (accessed 14 May 2018).
[98] Ludwig & Mertin, ‘“A Toast to the Dead”: Srebrenica Massacre Widows Sue UN, Dutch Government’, op. cit.
[99] Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, op. cit.
[100] ‘Srebrenica Report’, NIOD, op. cit., p. 2340.
[101] Ibid., p. 2340.
[102] Ibid., p. 2340-2356.
[103] Robinson, ‘Dutch still grapple with the shame of Srebrenica’, op. cit.
[104] Ibid.
[105] ‘Srebrenica Report’, NIOD, op. cit., p. 2015.
[106] Ibid., p. 2015.
[107] Ibid.
[108] ‘Chapter IV Human Rights – 1. Convention on the Prevention and Punishment of the Crime of Genocide, Paris, 9 December 1948’, United Nations Treaty Collection, 2018, https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-1&chapter=4&clang=_en, (accessed 17 September 2018).
[109] Government of the Netherlands, ‘Obligations when a treaty enters force’, Treaties, https://www.government.nl/topics/treaties/obligations-when-a-treaty-enters-force, (accessed 17 September 2018).
[110] NZDF MAJ Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, in ‘Section Twelve: International Criminal Court and Enforcement’, 149.335 Law of Armed Conflict, op. cit., p. 10.
[111] NZDF MAJ Derbyshire, ‘149.335: Introduction to LOAC’, in ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, op. cit., p. 5.
[112] Ibid., pp. 5, 9-15.
[113] Ibid., pp. 5, 7.
[114] NZDF MAJ Derbyshire, ‘Section One: Introduction to LOAC and Historical Development’, 149.335 Law of Armed Conflict, op. cit., p. 3; ‘149.335: Introduction to LOAC’, ibid., p. 7; ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 2.
CIL refers to practices in warfare that are so consistently upheld and adhered to by a majority of States on the world stage that they have become generally regarded as law. States comply with the practice out of a sense of legal obligation to an international norm or custom, rather than solely due to its own LOAC obligations or national interests. CIL is considered binding on all states regardless of whether or not the practices have been enshrined in international treaties or, if the practice is already within international legislation, whether all or a majority of States have signed on to them. However, CIL is founded on general, rather than unanimous, agreement. This means that in rare instances where a State has consistently objected to a particular practice or custom, that principle of customary law is not considered binding for that particular state. Nearly all of the major principles of LOAC as well as associated treaty law are now considered CIL, notably the 1948 Genocide Convention, the 1949 Geneva Conventions, and the Hague Convention IV (Hague Convention relative to the Laws and Customs of War on Land of 18 October 1907). However, because CIL is based on historical experience and general consensus, it is continually changing as conflict evolves, meaning that the legal obligations of States may change without any formal notification at all. As Derbyshire states: ‘LOAC continues to evolve as mankind struggles to advance the principles of humanity in warfare whilst maintaining the needs of international and national security’ (NZDF MAJ Derbyshire, ‘149.335: Introduction to LOAC’, ibid., pp. 13-14, 16; ‘149.335 History of LOAC’, 149.335 Law of Armed Conflict, op. cit., p. 35).
Today evolutions in CIL are taking place in the field of restrictions and limitations imposed on weaponry and the use of lethal force, and in the field of international criminal law as it relates to terrorists and jihadists in the global struggle to combat Islamo-fascist regional insurgencies and terrorist attacks around the globe. Under the LOAC, terrorists and jihadists captured in the territories of individual States during the Global War on Terror (GWOT) are classed as non-State Enemy combatants of Non-International Armed Conflicts (NIAC, Additional Protocol II to the Geneva Conventions) and as such they are not entitled to Prisoner of War (POW) protections under the four primary Geneva Conventions (GC I, II, III, IV). This lack of legal entitlement to LOAC protections is heightened further by the fact that international terrorists and jihadists conduct their operations out of uniform, deliberately fail to distinguish themselves from the civilian population, target innocent civilians in terrorist attacks, use civilians as human shields, and generally show a marked disdain and contempt for the principles of the LOAC. The question of how to treat, detain and put on trial these unlawful combatants, for the crimes against non-combatant civilians and national military and police forces that they are committing in State territories around the world, will continue to present a challenge to the international community for some time to come. They present a new and different brand of non-State Enemy combatant in armed conflict today, that was certainly not envisaged in the drafting of the Geneva Conventions in 1949 or the Additional Protocols in 1977.
[115] NZDF MAJ Derbyshire, ‘149.335: Material Field of Application’, in ‘Section Four: When and to Whom Does LOAC Apply’, 149.335 Law of Armed Conflict, op. cit., p. 15; ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., p. 13.
[116] NZDF MAJ Derbyshire, ‘149.335: Introduction to LOAC’, op. cit., p. 14.
[117] NZDF MAJ Derbyshire, ‘149.335: Command Responsibility and Superior Orders’, in ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, pp. 30-31.
[118] NZDF MAJ Derbyshire, ‘149.335: Command Responsibility and Superior Orders’, ibid., p. 36.
[119] NZDF MAJ Derbyshire, ‘149.335 Command Responsibility and Superior Orders’, ibid., pp. 29; ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., pp. 9-10.
[120] NZDF MAJ Derbyshire, ‘149.335 NZDF Code of Conduct Card’, ‘Section Two: Basic Principles of LOAC, NZDF Code of Conduct and Command Responsibility’, 149.335 Law of Armed Conflict, op. cit., p. 24.
[121] Article 8, ‘Rome Statute of the International Criminal Court’, in ‘Section Twelve: International Criminal Court and Enforcement’, op. cit., p. 19.
[122] NZDF MAJ Derbyshire, ‘149.335 Prevention and punishment of breaches of LOAC’, op. cit., p. 11.
[123] ‘Difference Between ICJ and ICC’, Law Define, 2018, https://lawdefine.blogspot.com/2017/11/difference-between-icj-and-icc.html, (accessed 17 September 2018).
[124] Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, op. cit.
[125] ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: West’s Failure to Prevent the Srebrenica Massacre’, op. cit.; Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, op. cit.; M. Tanner, ‘Outrage at medals for Dutch in Srebrenica’, Independent, December 2006, https://www.independent.co.uk/news/world/europe/outrage-at-medals-for-dutch-in-srebrenica-427267.html, (accessed 31 August 2018).
[126] Rennie, ‘Dutch honour ‘disgraced’ soldiers’, op. cit.; Tanner, ‘Outrage at medals for Dutch in Srebrenica’, ibid.
[127] Rennie, ‘Dutch honour ‘disgraced’ soldiers’, ibid.
[128] M. Tanner, ‘Outrage at medals for Dutch in Srebrenica’, op. cit.
[129] Modified image taken from ‘The Parliament Building, the Hague, Netherlands’, Bestourism.com, http://www.bestourism.com/items/di/7984?title=The-Parliament-Building-the-Hague-Netherlands&b=354, (accessed 14 September 2018).
[130] Ludwig & Mertin, ‘“A Toast to the Dead”: Srebrenica Massacre Widows Sue UN, Dutch Government’, op. cit.
[131] Ibid.
[132] ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: West’s Failure to Prevent the Srebrenica Massacre’, op. cit.; ‘Srebrenica Report – Summary for the Press’, NIOD, op. cit.
[133] ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: West’s Failure to Prevent the Srebrenica Massacre’, ibid.
[134] Ludwig & Mertin, ‘“A Toast to the Dead”: Srebrenica Massacre Widows Sue UN, Dutch Government’, op. cit.
[135] Ibid.
[136] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[137] Ibid.
[138] Modified image taken from ‘U.N. & Dutch Cowards on Trial (Analysis)’, Srebrenica Massacre, 6 June 2008, https://srebrenicamassacre1995.wordpress.com/tag/dutch-state/, (14 September 2017), a republication of Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, op. cit.
[139] Ludwig & Mertin, ‘Criminal Negligence? Srebrenica Survivors Sue Netherlands, United Nations’, ibid.
[140] Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, op. cit.
[141] Ibid.
[142] Ludwig & Mertin, ‘“A Toast to the Dead”: Srebrenica Massacre Widows Sue UN, Dutch Government’, op. cit.
[143] Ibid.; ‘Ratko Mladic Conviction Caps Decades of Grief Over Srebrenica Massacre’ [photo slideshow], op. cit.
[144] Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, op. cit.; UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, op. cit., p. 60.
[145] UN, ‘The Fall of Srebrenica – Report of the Secretary-General pursuant to General Assembly Resolution 53/35’, ibid., pp. 60-63.
[146] Ibid., p. 60.
[147] Waterfield, ‘Commander of UN forces ‘aware Srebrenica massacre was about to happen’, op. cit.
[148] Ludwig & Mertin, ‘U.N. & Dutch Cowards on Trial (Analysis)’, op. cit.
[149] Ibid.
[150] Vallely, ‘The Big Question: Why are Dutch soldiers being sued for the massacre at Srebrenica?’, op. cit.
[151] Ibid.
[152] Ibid.
[153] Ibid.
[154] O. Bowcott, ‘Netherlands to pay compensation over Srebrenica massacre’, The Guardian, 6 September 2013, http://www.theguardian.com/world/2013/sep/06/netherlands-compensation-srebrenica-massacre, (accessed 7 September 2013); ‘Dutch state ‘responsible for three Srebrenica deaths’, BBC News, 5 July 2013, www.bbc.co.uk/news/world-europe-14026218, (accessed 7 September 2013).
[155] ‘Dutch state apologizes for three Srebrenica deaths’, The Jakarta Post, 25 June 2015, http://www.thejakartapost.com/news/2015/06/25/dutch-state-apologizes-three-srebrenica-deaths.html. (accessed 9 May 2018); Van den Berg, ‘Under the UN Flag: The International Community and the Srebrenica Genocide’, op. cit.; Robinson, ‘Dutch still grapple with the shame of Srebrenica’, op. cit.
[156] D. Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules – UN peacekeepers should have known men were in danger, appeals court in The Hague rules over 1995 mass killing in Bosnia’, The Guardian, 28 June 2017, https://www.theguardian.com/world/2017/jun/28/dutch-soldiers-let-300-muslims-die-in-bosnian-war-court-rules, (accessed 15 May 2018).
[157] Modified image taken from ‘SREBRENICA – Srebrenica Massacre: Hate, atrocity and misprision – July 11, 1995: The beginning of the tragedy’, op. cit.
[158] Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules’, op. cit.
[159] Ibid.
[160] Ibid.
[161] Image taken from ‘U Potočarima danas dženaza za 35 žrtava genocida’, Radio Srebrenik, 11 July 2018, http://www.radiosrebrenik.ba/2018/07/potocarima-danas-dzenaza-35-zrtava-genocida/, (accessed 14 September 2018).
[162] Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules’, op. cit.
[163] Ibid.
[164] Dearden, ‘Srebrenica massacre: Dutch government ‘partially liable’ for murder of 300 Muslim men, court finds’, op. cit.
[165] Ibid.
[166] Ibid.
[167] Ibid.
[168] Ibid.
[169] Ibid.
[170] Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules’, op. cit.
[171] Dearden, ‘Srebrenica massacre: Dutch government ‘partially liable’ for murder of 300 Muslim men, court finds’, op. cit.
[172] S. van den Berg, ‘Dutch government seeks to overturn court ruling on Srebrenica, 21 September 2017, https://www.reuters.com/article/us-netherlands-court-srebrenica/dutch-government-seeks-to-overturn-court-ruling-on-srebrenica-idUSKCN1BV233, (accessed 13 September 2018).
[173] Ibid.
[174] J. Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, 30 June 2016, https://nltimes.nl/2016/06/30/twelve-srebrenica-veterans-suing-dutch-government, (accessed 10 May 2018); Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules’, op. cit.
[175] Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, ibid.
[176] Ibid.
[177] Modified image taken from ‘The Netherlands liable for Srebrenica Victims’ [‘Niederlande haften für Srebrenica-Opfer’], Schweizer Radio und Fernsehen (SRF), 16 July 2014, https://www.srf.ch/news/international/niederlande-haften-fuer-srebrenica-opfer, (accessed 10 October 2017).
[178] Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, ibid.
[179] Ibid.
[180] Cited in Schröder, ‘Dealing with Genocide: A Dutch Peacekeeper Remembers’, op. cit.
[181] Corder & Cohadzic, ‘Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of the massacre’, op. cit.
[182] Ibid.
[183] Ibid.
[184] J. Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, 30 June 2016, https://nltimes.nl/2016/06/30/twelve-srebrenica-veterans-suing-dutch-government, (accessed 10 May 2018).
[185] S. Schoonhoven, ‘Dutchbat soldiers accuse the State of Srebrenica – ‘Government seriously negligent and careless’’, De Telegraaf, 30 June 2016, https://www.telegraaf.nl/nieuws/400238/dutchbatters-klagen-de-staat-aan-om-srebrenica, (accessed 29 April 2018).
[186] Boffey, ‘Srebrenica massacre: Dutch soldiers let 300 Muslims die, court rules’, op. cit.
[187] Ibid.
[188] Ibid.; ‘SREBRENICA – The Wounds of Srebrenica have still not Healed: West’s Failure to Prevent the Srebrenica Massacre’, op. cit.
[189] Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, op. cit.
[190] Schoonhoven, ‘Dutchbat soldiers accuse the State of Srebrenica – ‘Government seriously negligent and careless’’, op. cit.
[191] Pieters, ‘Twelve Srebrenica Veterans Suing Dutch Government’, op. cit.
[192] ‘Srebrenica Report’, NIOD, ibid., p. 915.
[193] Ibid.
[194] ‘Christ Klep in Trouw: The Dutch look away from Srebrenica drama’, Universiteit Utrecht – News, 13 July 2015, https://www.uu.nl/nieuws/christ-klep-in-trouw-nederlanders-kijken-weg-voor-drama-srebrenica, (accessed 29 April 2018).
[195] Robinson, ‘Dutch still grapple with the shame of Srebrenica’, op. cit.
[196] Images taken from: ‘Warzone – Bas Czerwinski’, Nooderlicht, 2010, http://www.noorderlicht.com/en/archive/bas-czerwinski/, (accessed 14 September 2018); ‘War comes home’, VOXeurop, 22 February 2010, https://voxeurop.eu/en/content/article/196121-war-comes-home, (accessed 14 September 2018); ‘Operators from the Royal Netherlands Army Special Forces Korps Commandotroepen (KCT) in Afghanistan’, Reddit, 2016, https://www.reddit.com/r/MilitaryPorn/duplicates/4g9jjc/operators_from_the_royal_netherlands_army_special/, (accessed 14 September 2018).
[197] Corder & Cohadzic, ‘Srebrenica 20 years after the genocide: The Dutch peacekeepers still haunted by memories of the massacre’, op. cit.
[198] Government of the United States (U.S.), U.S. Embassy Tel Aviv (released by Wikileaks), ‘Cable 06TELAVIV2915, Peretz calls for MNF able to block Hizballah’, Wikileaks, 15 March 2011, http://www.wikileaks.org/plusd/cables/06TELAVIV2915_a.html, (accessed 12 June 2013).
[199] Modified image taken from ‘Netherlands Police and Military Face Special Forces Shortage’, TrueBlueLine – Law Enforcement News and Opinions, 21 May 2015, http://trueblueline.net/2015/05/netherlands-police-and-military-face-special-forces-shortage/, (accessed 14 September 2018).