© Van Diepen Van der Kroef Advocaten

in preventing the commission of genocide: the obligation of States parties is rather toemploy all means reasonably available to them, so as to prevent genocide so far aspossible. A State does not incur responsibility simply because the desired result is notachieved; responsibility is however incurred if the State manifestly failed to take allmeasures to prevent genocide which were within its power, and which might havecontributed to preventing the genocide. In this area the notion of “due diligence”, whichcalls for an assessment in concreto, is of critical importance. Various parameters operatewhen assessing whether a State has duly discharged the obligation concerned. The first,which varies greatly from one State to another, is clearly the capacity to influenceeffectively the action of persons likely to commit, or already committing, genocide.This capacity itself depends, among other things, on the geographical distance of the Stateconcerned from the scene of the events, and on the strength of the political links, as wellas links of all other kinds, between the authorities of that State and the main actors in theevents. The State’s capacity to influence must also be assessed by legal criteria, since it isclear that every State may only act within the limits permitted by international law; seenthus, a State’s capacity to influence may vary depending on its particular legal position visà-visthe situations and persons facing the danger, or the reality of genocide. On the otherhand, it is irrelevant whether the State whose responsibility is in issue claims, or evenproves, that even if it had employed all means reasonably at its disposal, they would nothave sufficed to prevent the commission of genocide. As well as being generally difficult toprove, this is irrelevant to the breach of the obligation of conduct in question, the more sosince the possibility remains that the combined efforts of several States, each complyingwith its obligation to prevent, might have achieved the result – averting the commission ofgenocide – which the efforts of only one State were insufficient to produce.’133. The Association et al. makes the incidental comment that the UN and the State of theNetherlands breached their obligation to deploy all means to prevent genocide. Thatappears from the facts set out in the originating writ of summons. The State of theNetherlands despatched Dutchbat when it was inadequately armed and trained. Thearmament that was sent with the troops was not deployed when that was required. The UNand the State of the Netherlands should have protected the population in accordance withthe agreements made and undertakings given. The Close Air Support was not deployed,alternatively not deployed in good time and adequately. Furthermore, the eventual airattack of 11 July 1995 (the day that the Srebrenica Safe Area would fall) was recalledthrough the fault of the State of the Netherlands. As a result, everything was not done to© Van Diepen Van der Kroef Advocaten page 59 of 99