Fair Trial in Mothers of Srebrenica et al.: Guessing as a Form of Reasoning

Zane Ratniece

doi:10.5334/ujiel.547

Abstract

On 19 July 2019, the Dutch Supreme Court (<em>Hoge Raad</em>) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica safe area designated by the United Nations (‘UN’) and the fate of more than 30,000 people who had fled to either a nearby compound of the Dutch battalion or other locations, including about 7,000 Bosniac males. However, the Supreme Court established the State’s responsibility only regarding a group of approximately 350 males who had been allowed inside the Dutchbat compound but were then handed over to the Bosnian Serbs. This contribution examines from the perspective of the right to fair trial how the courts determined the State’s liability for damages in relation to these males. It questions whether the parties to the proceedings had an opportunity to present their arguments on facts and evidence as to a percentage of the State’s liability for damages. It also views the Supreme Court’s determination of the liability at 10% as problematic.

Highlights

In the midst of the war in Bosnia and Herzegovina, in March 1994, Dutch troops arrived in the Srebrenica enclave to provide security for the Srebrenica safe area, as part of the United Nations (UN) peacekeeping force
On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica (‘Mothers’), a foundation established under the Dutch law, in the interests of more than 6,000 surviving relatives of the Srebrenica genocide
The Supreme Court’s judgment of 19 July 2019 marked the end of a more than a decade long effort led by the Mothers to elucidate the responsibility of the Netherlands in relation to the events in and around Srebrenica in July 1995 before the domestic courts

Summary

INTRODUCTION

In the midst of the war in Bosnia and Herzegovina, in March 1994, Dutch troops ( known as ‘Dutchbat’) arrived in the Srebrenica enclave to provide security for the Srebrenica safe area, as part of the UN peacekeeping force. This contribution discusses a specific aspect of how the Dutch courts determined the State’s liability for damages in respect of the approximately 350 males based on a lost chance of survival. This paper commences with an overview on the application of the right to fair trial to the proceedings in Mothers of Srebrenica et al it tackles three issues regarding the determination of the lost chance of survival of the approximately 350 males by the Dutch courts. For the reasons to which this contribution turns, the manner in which the domestic courts dealt with the issue of the State’s liability for damages can be considered problematic in terms of the right to fair trial

OPPORTUNITY TO PRESENT ARGUMENTS ON A PERCENTAGE OF THE CHANCE OF SURVIVAL

APPROACH BY THE SUPREME COURT

REASONING BY THE DUTCH COURTS AS REGARDS THE LOST CHANCE OF SURVIVAL

CONCLUSION