Writ of summons - Van Diepen Van der Kroef

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367. Besides the fact that Voorhoeve assumed that the State of the Netherlands jointlydetermined the conduct of Dutchbat, the senior Dutchbat officers also assumed that TheNetherlands exercised influence on important matters. Karremans thus declared beforethe French Commission of Enquiry that it was not a double key that was required for airsupport to be allowed (the UN and NATO), but a triple key as the State supplying troopsalso had to agree to the deployment of air support (see, the Report of the FrenchParliament, Part II, page 476). Moreover, there is film footage showing Karremansinforming Mladic verbatim that he has received instructions from the Ministry ofDefense to give humanitarian relief (in the NOS archive (access via www.nos.nl,‘dossier Srebrenica’, under ‘Mladic ontvangt Moslimdelegatie’ (Mladic receivesBosniac delegation)).368. The conclusion to be drawn from the above is that (in addition to the attribution to theUN) the conduct of Dutchbat and UNPROFOR must also be attributed to the State of theNetherlands as The Netherlands jointly exercised effective control. The UN and theState of the Netherlands are therefore also jointly responsible for the situation wherebythe Safe Area could fall.Attribution to The Netherlands for the failure to ensure observance of the Geneva-Conventions369. There exists another basis for attribution in addition to that which has been addressedabove regarding attribution on the ground of the exercise of effective control, and thatrests on the obligation of States under international law to ensure that the GenevaConventions are observed. Article 1 of all four Geneva Conventions obliges the StatesParties to the Convention to do the following:‘The High Contracting Parties undertake to respect and to ensure respect for thepresent Convention in all circumstances.’370. The ICJ held in its ‘Advisory Opinion on the Legal Consequenses of a Wall in OccupiedPalestinian Territory ’, of 9 July 2004, point 158, that Article 1 of the Geneva© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com156
Conventions obliges the Contracting States to ensure that the obligations that arise fromthe Conventions are fulfilled, irrespective of whether that State is party to the conflict inquestion:‘It follows from the provision that every State party to that Convention, whether or notit is a party to a specific conflict, is under an obligation to ensure that the requirementsof the instruments in question are complied with.’371. It follows from the above that where a sending State transfers powers without ensuringthat the Geneva Conventions will be observed, the sending State is responsible if theGeneva Conventions are breached by the contingent that is dispatched. The absence of asufficient guarantee that the Geneva Conventions will be observed will in any event beassumed if the dispatched troops are inadequately instructed and trained regarding theGeneva Conventions. This principle is confirmed in the literature (see, M. Zwanenburg,op. cit., page 107 et seq., and also page 128).372. The above rule is confirmed in the Report of 8 May 2002 of the Advisory Commissionon Issues arising under Public International Law (Commissie van Advies inzakeVolkenrechtelijke Vraagstukken (CAVV Report), entitled, ‘Advies inzakeaanspakelijkheid voor onrechtmatige daden tijdens UN vredesoperaties’ (AdvisoryOpinion on responsibility for wrongful acts during UN peace operations). ThisCommission is charged with advising of the Government and the Upper and LowerHouses on public international law (see, Article 2 of the Wet op de commissie vanadvies inzake volkenrechtelijke vraagstukken, (Act on the Advisory Commission onIssues arising under Public International Law) of 12 March 1998).373. In the case given above (that observance of the Geneva Conventions is not guaranteedby the State providing troops), the CAVV is of the opinion that States providing troopsare to be held responsible in addition to the UN (see, 4.3 of the CAVV Report). As wasnoted above there existed no written agreement between the UN and the State of theNetherlands regarding the transfer of authority. The State of the Netherlands dispatchedtroops without guaranteeing that the Geneva Conventions would be observed. The State© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com157
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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
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The flight to the UN compound189. D
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193. It is incomprehensible that Du
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soldiers let that be known when the
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Other points concerned forced evict
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‘On 12 and 13 July 1995, upon the
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statements put in the proceedings a
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lying on a wagon. The Dutchbat sold
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228. Only one Dutchbat officer was
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‘UNMO source about 1,000 men take
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night-time. I did not dare to leave
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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 and 134: acting arise, respectively). In add
Page 135 and 136: of the Safe Area and was not immedi
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: ecame entwined. In his view, it was
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
Page 185 and 186: ‘militairement avait mal conduit.
Page 187 and 188: UN but also to the purposes that ar
Page 189 and 190: possible immunity on the part of th
Page 191 and 192: ‘The United Nations shall make pr
Page 193 and 194: ‘In spite of this provision of th
Page 195: THEREFORE:If it pleases the Court t
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