Writ of summons - Van Diepen Van der Kroef

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These orders were not carried out. Dutchbat did not fire even a single shot aimed directlyat the attacking Bosnian Serbs (see, UN Report, number 474). Just before the fall of theSafe Area the order was also given in enforcement of the mandate to:‘provide medical assistance and assist local medical authorities’Instead of providing medical relief injured refugees were sent away even though thoserefugees had no prospect of any alternative possibility of obtaining medical relief.385. The supervision of the refugees on the compound at Potocari, under the guise of settingup a mini Safe Area, the refusal to permit refugees on the compound despite promises tothe contrary, and co-operating in the separation of the men from the women, as well asco-operating in deportations and the non-reporting of war crimes, do not fall within theterms of the mandate but rather constitute a breach thereof.Breach of international humanitarian law386. International humanitarian law is a collection of rules on the rights of people in wartime. It protects persons who do not or no longer engage in hostilities and it restricts themeans and methods of conducting war. International humanitarian law is also termed thelaw of war or the law of armed conflicts (see, inter alia, the Hague Conventionrespecting the Laws and Customs of War on Land of 1907 and the Geneva Conventionsetc.). The Standing Operating Procedure 208 noted above also contained rules for UNtroops on the protection of the rights of people in war time and as such also formed partof the international humanitarian law in force. Plaintiff and Foundation hold the UN andthe State of the Netherlands liable for having acted contrary to internationalhumanitarian law by not reporting war crimes.387. The question can be posed whether the UN is bound by international humanitarian law.Indeed, the UN has signed neither the Hague Convention respecting the Laws andCustoms of War on Land of 1907 nor the Geneva Conventions. There is no directapplicability on that ground. As already stated above, it is indisputable that the UNpossesses legal personality. The UN is in that capacity of legal person bound by© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com162
international customary humanitarian law (see, R. Hofmann, op. cit., page 15).It would also be unimaginable in this connection to imagine that the UN – as a partyinvolved in armed conflicts – was not itself subject to international law. It is assumedthat the Hague Convention respecting the Laws and Customs of War on Land of 1907and the 4 th Geneva Convention as customary humanitarian law also apply to the UN(see, A. Simon, op. cit., page 115) and that the UN is bound by the rules of internationalhumanitarian law (see, Bothe/Dörschel, in D. Fleck, The Handbook of The Law ofVisiting Forces, Oxford University Press 2001, page 500).388. The UN is bound by international humanitarian law in respect of peace enforcementoperations as being a party that engages in combat. The question is in which cases isinternational humanitarian law applicable to peacekeeping operations. After all, in thoseoperations the UN is not normally a party that participates in acts of war. Plaintiff andFoundation will show that in the present case the UN was bound by internationalhumanitarian law. The following serves as explanation.389. The Secretary-General of the UN has stated the following on observance of internationalhumanitarian law (see, the Secretary-General’s Bulletin on the Observance by UnitedNations forces of international humanitarian law, ST/SGB/1999/13, of 6 August 1999,under Article1.1):‘The fundamental principles and rules of international humanitarian law set out at thepresent bulletin are applicable to United Nations forces when in situations of armedconflicts they are actively engaged therein as combatants, to the extent and theduration of their engagement. They are accordingly applicable in enforcement actions,or in peacekeeping operations when the use of force is permitted in self-defense.’390. The basic rules of customary international humanitarian law are, according to thatBulletin (see, also Bothe/Dörschel, in D. Fleck, The Handbook of The Law of VisitingForces, Oxford University Press 2001, page 501):© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com163
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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
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People had no food or water, nor we
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During all of this the Dutch soldie
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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
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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: - secondly, it was evident that the
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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