© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
prevent the genocide. Worse still, with that the State of the Netherlands actively botchedthe little military action that was undertaken to prevent genocide. Additionally, theobserved war crimes should have been reported, which could have saved many lives. TheUnited Nations and the State of the Netherlands also took it upon themselves to play anactive role in separating the men and the women. It is here repeated that the ICJ has ruledthat for the violation of Article I of the Genocide Convention it is not relevant whether theemployment of all available measures would have prevented the genocide. The Associationet al. here also records again that numerous other violations of human rights occurred. TheAssociation et al. refers to points 412 through 417 of the originating writ of summons.134. In reviewing the question whether there was violation of Article I of the GenocideConvention it is not relevant that the allegedly culpable conduct (alternatively, theallegedly culpable omissions) has (have) occurred prior to the genocide that was committedfrom 13 July 1995. The prevention of genocide is, after all, by definition conduct that occursprior to the commission of the genocide. The ICJ in its ruling of 26 February 2007 held onthis that (see legal consideration 431):‘(…) a State can be held responsible for breaching the obligation to prevent genocide only ifgenocide was actually committed. (…) This obviously does not mean that the obligation toprevent genocide only comes into being when perpetration of genocide commences; thatwould be absurd, since the whole point of the obligation is to prevent, or attempt toprevent, the occurrence of the act. In fact, a State’s obligation to prevent, and thecorresponding duty to act, arise at the instant that the State learns of, or should normallyhave learned of, the existence of a serious risk that genocide will be committed. From thatmoment onwards, if the State has available to it means likely to have a deterrent effect onthose suspected of preparing genocide, or reasonably suspected of harboring specific intent(dolus specialis), it is under a duty to make such use of these means as the circumstancespermit.’135. The above ruling means that the UN and the State of the Netherlands had to employ allavailable means from the moment that they knew, or should reasonably have known thatgenocide would occur. As has been discussed above and as will be addressed again below,the UN and the State of the Netherlands were from 1993 already aware of the threatenedgenocide. Furthermore, the UN and the State of the Netherlands knew that the BosnianSerbs were continuing to attack the Safe Area and that the objective of the Bosnian Serbs© Van Diepen Van der Kroef Advocaten page 60 of 99
was the ethnic cleansing of this area. The facts and circumstances set out above that wereplayed out under the eyes of Dutchbat were an unmistakable signal of what would occur.The majority of the murders occurred in the days following the fall of the Safe Area.136. The following shows that the UN and the State of the Netherlands had specific knowledgethat genocide threatened. The UN Report of 30 April 1993 (UN, S/25700, Report of theSecurity Council established pursuant to resolution 819 (1993)) contains the following:‘(14) UNPROFOR had participated actively in the drafting and the process of convincingthe Bosnian Commander to sign the agreement (addition of the attorney: demilitarisationagreement of 18 April 1993). The alternative could have been a massacre of 25,000people.(…)(17) There is no doubt that had this agreement not been reached, most probably amassacre would have taken place, which justifies the efforts of the UNPROFORCommander.(…)(19) During the Mission’s briefing at Srebrenica, the representative of ICRC informed itthat the Serbs were not allowing surgeons to enter the city, in direct violation ofinternational humanitarian law. There were many wounded requiring surgery. The onlysurgeon in the city has not been authorized to stay by the Serbs. To impede medicalassistance is a crime of genocide. This action, together with the cutting of the watersupply and electricity, have put into effect a slow-motion process of genocide.(…)(27) (g) (…) The attitude of defiance of the Serbs towards the United Nations in general isa matter that should concern the Council. The Serbs obviously have little respect forUNPROFOR’s authority.’© Van Diepen Van der Kroef Advocaten page 61 of 99
- Page 11 and 12: 22. The Public Prosecutions Departm
- Page 13 and 14: Explanation of ground of appeal 427
- Page 15 and 16: eferred to the fact that the proces
- Page 17 and 18: No legal relevant interest of the S
- Page 19 and 20: The Article envisages a situation i
- Page 21 and 22: The Hague District Public Prosecuto
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- Page 26 and 27: functional necessity. In that conte
- Page 28 and 29: only in Germany. It was not dispute
- Page 30 and 31: immunity of the UN has no absolute
- Page 32 and 33: ‘Darüber hinaus kann gefragt wer
- Page 34 and 35: the purpose would become subservien
- Page 36 and 37: exercise of their functions in conn
- Page 38 and 39: ) leads to a result which is manife
- Page 40 and 41: 90. The ICJ gave an Advisory Opinio
- Page 42 and 43: of functional necessity for immunit
- Page 44 and 45: 100. Even where the District Court
- Page 46 and 47: 105. The District Court referred un
- Page 48 and 49: necessary that change is there effe
- Page 50 and 51: 115. It is also incomprehensible th
- Page 52 and 53: consideration 3.3.6). Under legal c
- Page 54 and 55: desirable that national courts do n
- Page 56 and 57: evidence of the necessity of conduc
- Page 58 and 59: The whole point of the Genocide Con
- Page 62 and 63: 137. It was known at the UN - and b
- Page 64 and 65: 144. It is established as a result
- Page 66 and 67: 151. The Basic Principles provide t
- Page 68 and 69: Convention and the Geneva Conventio
- Page 70 and 71: uling of the European Court of Huma
- Page 72 and 73: torture must be accountable is not
- Page 74 and 75: is in that connection incorrect. Th
- Page 76 and 77: Ground of appeal 14178. The Distric
- Page 78 and 79: human rights treaties, ECHR and ICC
- Page 80 and 81: they rely for their effectiveness o
- Page 82 and 83: Association et al. will below furth
- Page 84 and 85: And also:‘Reaffirming their profo
- Page 86 and 87: eason enjoys immunity from jurisdic
- Page 88 and 89: the maintenance of international pe
- Page 90 and 91: is liable to become overly responsi
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- Page 94 and 95: would occupy in the hierarchy of no
- Page 96 and 97: 209. To conclude, the Association e
- Page 98 and 99: Explanation of ground of appeal 172
was the ethnic cleansing of this area. The facts and circumstances set out above that wereplayed out un<strong>der</strong> the eyes of Dutchbat were an unmistakable signal of what would occur.The majority of the mur<strong>der</strong>s occurred in the days following the fall of the Safe Area.136. The following shows that the UN and the State of the Netherlands had specific knowledgethat genocide threatened. The UN Report of 30 April 1993 (UN, S/25700, Report of theSecurity Council established pursuant to resolution 819 (1993)) contains the following:‘(14) UNPROFOR had participated actively in the drafting and the process of convincingthe Bosnian Comman<strong>der</strong> to sign the agreement (addition of the attorney: demilitarisationagreement of 18 April 1993). The alternative could have been a massacre of 25,000people.(…)(17) There is no doubt that had this agreement not been reached, most probably amassacre would have taken place, which justifies the efforts of the UNPROFORComman<strong>der</strong>.(…)(19) During the Mission’s briefing at Srebrenica, the representative of ICRC informed itthat the Serbs were not allowing surgeons to enter the city, in direct violation ofinternational humanitarian law. There were many wounded requiring surgery. The onlysurgeon in the city has not been authorized to stay by the Serbs. To impede medicalassistance is a crime of genocide. This action, together with the cutting of the watersupply and electricity, have put into effect a slow-motion process of genocide.(…)(27) (g) (…) The attitude of defiance of the Serbs towards the United Nations in general isa matter that should concern the Council. The Serbs obviously have little respect forUNPROFOR’s authority.’<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 61 of 99
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