On Wednesday, a Dutch court rejected a claim for compensation by a group of Bosnian Muslims against the Dutch government for their peacekeepers' role in the massacre at Srebrenica. In early 1993, United Nations peacekeepers, with the authorization of the UN Security Council, set up a "safe haven" for Muslim refugees in Srebrenica to protect them from attacks by the Bosnian Serb Army. The town has come to symbolize failed humanitarian intervention; after 350 Dutch peacekeepers fled for their lives in July 1995, the Serbs killed an estimated 7,000 Muslim men and boys in four days.
So what does law have to say about this tragic event, and, more importantly, what role should courts play in addressing intervenors who fail to prevent grave crimes? Leaving aside the leaders of the Bosnian Serb Army, many of whom have been charged with crimes before the International Criminal Tribunal for the Former Yugoslavia and some of whom face civil liability claims in national courts, can courts of law be used to determine who was responsible for the failure to protect these refugees? Can and should courts play a part in ensuring that such failures are not repeated in the future?
So far, the Dutch courts seem to think that the answer to these questions is a resounding "No!" Faced with a class action lawsuit filed by the "Mothers of Srebrenica" against the United Nations for their failure to prevent the massacre, a Dutch court found earlier this year that it had no jurisdiction because the UN is immune from suit. Closing the loop, a Dutch court found this week that the Dutch government also could not be held responsible for the massacre because its troops were operating in Bosnia under a UN mandate.
One can see the theoretical argument behind this approach, akin to Good Samaritan laws: UN peacekeepers are simply trying to minimize the impacts of the actions of some very very bad actors, and shouldn't be held responsible for botched interventions. Moreover, in times of war, military leaders must make difficult decisions under severe time pressure, and their ability to act decisively may be compromised if they feel a lawyer breathing down their neck. But the question remains -- would the Bosnian Muslims have been better off without this UN-created safe haven that went so very wrong? Should the responsible actors at the UN, from the Security Council to the UN Commander in Bosnia, be held liable? If so, should the law aim to make the victims whole or to prevent these actors from making similar mistakes in the future (or both)?
Thus far, international legal accountability for grave atrocities has been marked by a focus on the perpetrators of crimes rather than the failures of those who intervene, and perhaps that's right -- perhaps courts of law shouldn't play a role in incentivizing humanitarian action. But if the massacre at Srebrenica can teach us anything, it's that we need something more than the current loop of immunity to ensure that future humanitarian missions do more good than harm.
Cross-posted on Concurring Opinions.