Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
‘Protection of the civilian population, means and methods of conduct, treatment ofcivilians and persons hors the combat, treatment of detained persons, protection of thewounded, the sick and medical and relief personnel.’391. There is a question of applicability in the first place if the UN troops are involved inpeace enforcement, but also if a peacekeeping mission deteriorates and the troopsbecome involved in an action with organised armed forces (see, Bothe/Dörschel, inFleck, The Handbook of The Law of Visiting Forces, Oxford University Press 2001,page 501). What is involved here is the factual observation that there is fighting and notthe normative question whether fighting was allowed. International humanitarian lawapplies in such situations. Plaintiff emphasises that the operation regarding theSrebrenica Safe Area cannot be characterised as a peacekeeping mission. It was clearindeed prior to the dispatch of Dutchbat that a war was raging in the former Yugoslaviaand that the Bosnian Serbs had killed large numbers of civilian victims and would do soagain if they got the chance. There was absolutely no question of peace. This was aquestion of war and the peace had to be enforced. The resolutions provided in thatrespect for the possibility of air strikes. As has been observed above, the order toprotect the Safe Area, which was an enforcement of the possibility of peaceenforcement, followed once more on 10 July 1995.392. UN resolution 836 (under number 9) gave the UN troops the right to use force in selfdefence,in response to attacks on or armed breaches of the Safe Area, in the case ofobstruction of the Safe Area, or the obstruction of the freedom of movement ofUNPROFOR or of humanitarian relief. In actual fact humanitarian relief had beenobstructed for two years, the Safe Area had beeen breached on numerous occasions andUNPROFOR had been fired on. The UN troops had received the express order to protectthe Safe Area. The fact that the order was ignored has no bearing on the fact that the UNtroops were involved in the fighting and that therefore international humanitarian lawwas applicable.393. The UN and Dutchbat acted contrary to international humanitarian law by not reportingwar crimes, comprising plundering, rape, summary executions, grave mistreatment of© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com164
civilians, deportation and murder. As set out above, the obligation to report war crimesarises, inter alia, from the Geneva Conventions, Standing Operating Procedure 208 andArticle 1 paragraph 3 of the UN Charter. The obligation to ensure observance of theGeneva Conventions entails that war crimes must be reported so that the objectives ofthe Geneva Conventions are ensured. The observed war crimes were also addressedextensively in the treatment of the facts above.Genocide394. The Convention on the Prevention and Punishment of the Crime of Genocide (hereafter:‘Genocide Convention’) was adopted on 9 December 1948. The Genocide Conventionobliges States, inter alia, to take all measures to prevent the commission of genocide.The State of the Netherlands is a Party to the Genocide Convention, and on that accountis bound by these obligations. This Convention is recognised as imperative law (see,J.A. Frowein, Encyclopedia of Public International Law, Volume Three, 1997, page 67,as well as A. Simon, op. cit., page 133). The UN has acknowledged that it is bound byimperative international law (see, Report of the Secretary-General on Financing of theUnited Nations Protection Force (…), of 20 September 1996 (A/51/389, paragraphs 6-8,page 4 and paragraph 16, page 6).395. The UN and the State of the Netherlands breached international law by not fulfilling, orat least insufficiently fulfilling, their obligations under the Genocide Convention. Moreparticularly, the UN and the State of the Netherlands did insufficient to prevent thecommission of genocide. Plaintiff and Foundation will below address the fact thatgenocide was committed and the obligations to prevent genocide under the GenocideConvention. Plaintiff and Foundation will establish that the UN and the State of theNetherlands did not fulfill that obligation. Plaintiff and Foundation will address also theforeseeability of the the crime of genocide that was committed.396. The Genocide Convention defines genocide in Article II as:‘any of the following acts committed with intent to destroy, in whole or in part, anational, ethnical, racial or religious group, as such:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com165
- 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
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- Page 149 and 150: ‘Article 3 - General Principles1.
- Page 151 and 152: control of UNPROFOR from the moment
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- Page 155 and 156: ecame entwined. In his view, it was
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- 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
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- 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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civilians, deportation and mur<strong>der</strong>. As set out above, the obligation to report war crimesarises, inter alia, from the Geneva Conventions, Standing Operating Procedure 208 andArticle 1 paragraph 3 <strong>of</strong> the UN Charter. The obligation to ensure observance <strong>of</strong> theGeneva Conventions entails that war crimes must be reported so that the objectives <strong>of</strong>the Geneva Conventions are ensured. The observed war crimes were also addressedextensively in the treatment <strong>of</strong> the facts above.Genocide394. The Convention on the Prevention and Punishment <strong>of</strong> the Crime <strong>of</strong> Genocide (hereafter:‘Genocide Convention’) was adopted on 9 December 1948. The Genocide Conventionobliges States, inter alia, to take all measures to prevent the commission <strong>of</strong> genocide.The State <strong>of</strong> the Netherlands is a Party to the Genocide Convention, and on that accountis bound by these obligations. This Convention is recognised as imperative law (see,J.A. Frowein, Encyclopedia <strong>of</strong> Public International Law, Volume Three, 1997, page 67,as well as A. Simon, op. cit., page 133). The UN has acknowledged that it is bound byimperative international law (see, Report <strong>of</strong> the Secretary-General on Financing <strong>of</strong> theUnited Nations Protection Force (…), <strong>of</strong> 20 September 1996 (A/51/389, paragraphs 6-8,page 4 and paragraph 16, page 6).395. The UN and the State <strong>of</strong> the Netherlands breached international law by not fulfilling, orat least insufficiently fulfilling, their obligations un<strong>der</strong> the Genocide Convention. Moreparticularly, the UN and the State <strong>of</strong> the Netherlands did insufficient to prevent thecommission <strong>of</strong> genocide. Plaintiff and Foundation will below address the fact thatgenocide was committed and the obligations to prevent genocide un<strong>der</strong> the GenocideConvention. Plaintiff and Foundation will establish that the UN and the State <strong>of</strong> theNetherlands did not fulfill that obligation. Plaintiff and Foundation will address also theforeseeability <strong>of</strong> the the crime <strong>of</strong> genocide that was committed.396. The Genocide Convention defines genocide in Article II as:‘any <strong>of</strong> the following acts committed with intent to destroy, in whole or in part, anational, ethnical, racial or religious group, as such:© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com165
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