The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result

Kushtrim Istrefi

doi:10.5334/ujiel.544

Abstract

In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the <em>Mothers of Srebrenica</em> case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life.

Highlights

Between early March 1994 and late July 1995, the Dutch armed troops (Dutchbat) operated in the Srebrenica region of Bosnia and Herzegovina as part of the United Nations Protection Force (UNPROFOR).[2]
In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males
The approach taken in Mothers of Srebrenica is important for the parties to the dispute, namely the Netherlands and the surviving relatives of the victims of Srebrenica genocide

Summary

INTRODUCTION

Between early March 1994 and late July 1995, the Dutch armed troops (Dutchbat) operated in the Srebrenica region of Bosnia and Herzegovina as part of the United Nations Protection Force (UNPROFOR).[2]. In 2019, the Dutch Supreme Court established that the Netherlands had acted unlawfully only in relation to one single act and concerning a small number of victims This single unlawful act relates to the failure of Dutchbat to allow the approximately 350 Bosniac males to remain inside the compound on 13 July 1995 given the danger to their lives from Bosnian Serbs.[20] it found that ‘the liability of the State is limited to 10% of the damage suffered by the surviving relatives of these male refugees’.21. It suggests that the Dutch Supreme Court did not carefully examine the decisionmaking, planning and operations as required by the case-law of the European Court of Human Rights (ECtHR) regarding the positive obligation to protect in challenging security situations These arguments are presented in the following order. The paper concludes by reflecting on the legacy of the Mothers of Srebrenica case regarding the standards of protection under Articles 2 and 3 of the ECHR in challenging security situations.[22]

ACTIVATION OF ARTICLES 2 AND 3 OF THE ECHR

POSITIVE OBLIGATIONS UNDER ARTICLES 2 AND 3 OF THE ECHR

Findings

CONCLUSION