Writ of summons - Van Diepen Van der Kroef

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309. Should Bosnian law be applicable and if no choice of law in the sense indicated above ismade, the facts presented by Plaintiff are also sufficient for her claims to be awardedalso on the ground of Bosnian law. In that case Plaintiff requests the opportunity toelucidate her claim further according to Bosnian law.II.4.Liability under civil lawNon-performance: obligations entered into310. The UN and the State of the Netherlands entered into obligations to ensure theprotection of the Safe Area and its inhabitants. General Morillon, in his capacity as UNCommander, promised the population of Srebrenica in March 1993 that the war wasover for them and that they were protected. The population only too happily acceptedthat offer. Consensus was thereby reached between the UN and the population, whichobliged the UN to ensure the protection of the population.311. The resolutions discussed above were adopted for the purpose of implementing theobligation that the UN had assumed as a result of the promise of General Morillon.Consensus was reached on the basis of those resolutions also between the UN, on theone hand, and the population of the Safe Area (including Plaintiff and her family), on theother. That meant that the UN would protect the population. In addition, the UN insistedthat the population of the Safe Area conclude a demilitarisation agreement with theBosnian Serbs, which led to the disarmament of the Safe Area. The population of theSafe Area would never have agreed to the disarmament arrangement, if at the same timethe UN had not taken on the obligation to ensure the protection of the population.312. In implementation of the above resolutions the UN agreed with the State of theNetherlands that The Netherlands would send troops to the Safe Area in order to ensurethe protection of the population there. Such an agreement must be characterized as athird-party stipulation within the meaning of Article 6:253 Civil Code, as that agreementcreates the right of the population of the Safe Area to invoke the agreement. As thethird-party stipulation was made without payment, Article 6:253 paragraph 4 Civil Codeprovides that this is deemed to be accepted as it came to the knowledge of the population© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com134
of the Safe Area and was not immediately rejected. The position of the population asthird party under the third-party stipulation entails that after acceptance the population isdeemed to be a party to the agreement (Article 6:254 paragraph 1 Civil Code) and thatPlaintiff had a right to performance. With the failure to fulfill that obligation Plaintiffhas the right to have, and an interest in having, her claims awarded. The same holds forthe persons whose interests are promoted by Foundation.313. Dutchbat told the population of the Safe Area on numerous occasions that Dutchbatwould take care of the protection of the population. That follows already from thedisarming of the population, but also from the promises that in so many words weremade. Those promises were made in a number of ways including in response to requestsfor a return of the seized (heavy) weapons. Dutchbat repeatedly promised the populationalso during the fall that Dutchbat would ensure protection and that the population wouldbe safe on the UN compound. This promise was repeated even after the fall, not least bythe setting up of the mini Safe Area at the compound.Non-performance: breach of contract314. The UN and the State of the Netherlands failed to fulfill their obligations. That isdemonstrated by the fact that some 35,000 to 40,000 people were driven out of theSrebrenica Safe Area by the Bosnian Serbs, with the abandonment of the major part oftheir possessions. Because of the failure to provide protection between 8,000 and 10,000people were able to be murdered. The victims were principally men, but also boys, somestill children. Among the victims there were also women and girls, who were often alsothe victim of rape.315. The UN investigated the errors made by them and embodied that investigation in the UNReport. Plaintiff states here that in that connection the International Court of Justice(ICJ) in its Decision of 26 February 2007 in the Case Bosnia-Herzegovina against Serbiaand Montenegro, concerning the authority of the UN Report, judged that (see number230 of that decision):© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com135
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WRIT OF SUMMONSDISTRICT COURT, THE
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IN ORDER:on Wednesday, thetwo thous
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- every request by the inhabitants
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8. The fate of the civilian populat
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IV Tender of evidence 446I Facts5.
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NIOD. This Report is referred to as
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12. The Yugoslav People’s Army (o
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‘Prior to departing, he addressed
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- UN resolution 816 (31 March 1993)
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No. 4:Decides to ensure full respec
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…Should UNPROFOR’s presence pro
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30. To reiterate here, the question
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UN and the State of the Netherlands
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Brigade. In addition, the State of
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43. The choice in favour of deploym
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The government parties replied to t
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population during the training as
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Potocari/Srebrenica. This chain of
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63. As appears from the above, and
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eference to the failure to act of D
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‘I have been directed, today 29 M
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leaders (Milosevic, Karadzic and Ml
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observation post was not carried ou
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attack on the Safe Area on 6 July 1
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single shot being fired and OP-F wa
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immediate and robust reaction Nicol
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know what Dutchbat itself would do
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that the enclave was continuously e
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‘You are to use all means at your
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Commander therefore gave the order
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he proposed to have Karremens arres
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Brantz, to establish that there was
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officers and the State of the Nethe
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had any purpose to go ahead with th
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Voorhoeve (see also number 307 of t
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y VRS soldiers in Dutch uniform and
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population: medical matters (Dutchb
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OP-N161. The capture of OP-N is des
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Brantz (Tuzla)↕Karremans, Franken
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‘The first line of resistance to
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180. Plaintiff Mujić states (see E
Page 83 and 84: The flight to the UN compound189. D
Page 85 and 86: 193. It is incomprehensible that Du
Page 87 and 88: soldiers let that be known when the
Page 89 and 90: Other points concerned forced evict
Page 91 and 92: ‘On 12 and 13 July 1995, upon the
Page 93 and 94: statements put in the proceedings a
Page 95 and 96: lying on a wagon. The Dutchbat sold
Page 97 and 98: 228. Only one Dutchbat officer was
Page 99 and 100: ‘UNMO source about 1,000 men take
Page 101 and 102: night-time. I did not dare to leave
Page 103 and 104: 239. Plaintiff Hotič states (see E
Page 105 and 106: People had no food or water, nor we
Page 107 and 108: During all of this the Dutch soldie
Page 109 and 110: group and they were raped. I was ve
Page 111 and 112: four or five Dutchbat soldiers were
Page 113 and 114: shocked by what he had evidently se
Page 115 and 116: follows:‘An alternative position
Page 117 and 118: ‘We were deported to Tuzla later
Page 119 and 120: I arrived at the barrier shortly th
Page 121 and 122: encountered objections from the Dut
Page 123 and 124: 277. Plaintiff Hasanović was born
Page 125 and 126: Subašić282. Plaintiff Subašić w
Page 127 and 128: IILegal characterisationIntroductio
Page 129 and 130: the United Nations, Advisory opinio
Page 131 and 132: 302. The UN and the State of the Ne
Page 133: acting arise, respectively). In add
Page 137 and 138: weapons of the VRS, or at least to
Page 139 and 140: consequence that the VRS could depl
Page 141 and 142: 326. Instead of taking action from
Page 143 and 144: ‘(…) I had spent days lying on
Page 145 and 146: 23 July 1995 (see H. Praamsma, J. P
Page 147 and 148: (a) (…) encouraging the progressi
Page 149 and 150: ‘Article 3 - General Principles1.
Page 151 and 152: control of UNPROFOR from the moment
Page 153 and 154: ‘The presumption can be rebutted
Page 155 and 156: ecame entwined. In his view, it was
Page 157 and 158: Conventions obliges the Contracting
Page 159 and 160: Article 8 of the ILC Articles for I
Page 161 and 162: - secondly, it was evident that the
Page 163 and 164: international customary humanitaria
Page 165 and 166: civilians, deportation and murder.
Page 167 and 168: ‘(…) confirm that Article I doe
Page 169 and 170: also be assessed by legal criteria,
Page 171 and 172: ‘(14) UNPROFOR had participated a
Page 173 and 174: under customary law. A duty on stat
Page 175 and 176: and the State of the Netherlands ac
Page 177 and 178: for International Organisations com
Page 179 and 180: ‘(c) Provide those who claim to b
Page 181 and 182: the State of the Netherlands must p
Page 183 and 184: of the Netherlands. The UN and the
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‘militairement avait mal conduit.
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UN but also to the purposes that ar
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possible immunity on the part of th
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‘The United Nations shall make pr
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‘In spite of this provision of th
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THEREFORE:If it pleases the Court t
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Writ of summons - Van Diepen Van der Kroef

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