Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
is taken at a time prior to the genocide. The ICJ has held on this in its Decision of 26February 2007 that (see, legal consideration 431):‘(…) a State can be held responsible for breaching the obligation to prevent genocideonly if genocide was actually committed. (…) This obviously does not mean that theobligation to prevent genocide only comes into being when perpetration of genocidecommences; that would be absurd, since the whole point of the obligation is to prevent,or attempt to prevent, the occurrence of the act. In fact, a State’s obligation to prevent,and the corresponding duty to act, arise at the instant that the State learns of, or shouldnormally have learned of, the existence of a serious risk that genocide will becommitted. From that moment onwards, if the State has available to it means likely tohave a deterrent effect on those suspected of preparing genocide, or reasonablysuspected of harboring specific intent (dolus specialis), it is under a duty to make suchuse of these means as the circumstances permit.’407. The above statement means that the UN and the State of the Netherlands should havedeployed all means available to them from the time that they suspected or reasonablyshould have suspected that genocide would be committed. As was addressed above andwill be addressed again below, the UN and the State of the Netherlands knew already asearly as 1993 of the impending threat of genocide. Moreover, the UN and the State ofthe Netherlands knew that the Bosnian Serbs were constantly attacking the Safe Areaand that the ethnic cleansing of this area was the aim of the Bosnian Serbs. The factsand circumstances described above that took place under the eyes of Dutchbat werealso an unequivocal announcement of what would take place. Most of the murders werecommitted in the days following the fall of the Safe Area.408. The knowledge that the threatened genocide was also specifically known to the UN andthe State of the Netherlands appears from the following. In the UN Report of 30 April1993 (UN, S/25700, Report of the Security Council established pursuant to resolution819 (1993)) is the following statement:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com170
‘(14) UNPROFOR had participated actively in the drafting and the process ofconvincing the Bosnian Commander to sign the agreement (lawyer’s note:demilitarisation agreement of 18 April 1993). The alternative could have been amassacre of 25,000 people.(…)(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 informedit that the Serbs were not allowing surgeons to enter the city, in direct breach ofinternational humanitarian law. There were many wounded requiring surgery. Theonly surgeon in the city has not been authorized to stay by the Serbs. To impedemedical assistance is a crime of genocide. This action, together with the cutting of thewater supply 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 ingeneral is a matter that should concern the Council. The Serbs obviously have littlerespect for UNPROFOR’s authority.’409. It was known to the UN – and to the State of the Netherlands – that genocide threatenedin Srebrenica even before Dutchbat was dispatched to Srebrenica. The UN accepted asearly as 1993 that genocide could be committed in Srebrenica. It was precisely theprevention of genocide that was the object behind the setting up the Srebrenica SafeArea. Moreover, it is clear from the UN Report of 30 April 1993 referred to above thatthe Bosnian Serbs already at that time had no respect for the UN and its resolutions. The© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com171
- Page 119 and 120: I arrived at the barrier shortly th
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- Page 123 and 124: 277. Plaintiff Hasanović was born
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‘(14) UNPROFOR had participated actively in the drafting and the process <strong>of</strong>convincing the Bosnian Comman<strong>der</strong> to sign the agreement (lawyer’s note:demilitarisation agreement <strong>of</strong> 18 April 1993). The alternative could have been amassacre <strong>of</strong> 25,000 people.(…)(17) There is no doubt that had this agreement not been reached, most probably amassacre would have taken place, which justifies the efforts <strong>of</strong> the UNPROFORComman<strong>der</strong>.(…)(19) During the Mission’s briefing at Srebrenica, the representative <strong>of</strong> ICRC informedit that the Serbs were not allowing surgeons to enter the city, in direct breach <strong>of</strong>international humanitarian law. There were many wounded requiring surgery. Theonly surgeon in the city has not been authorized to stay by the Serbs. To impedemedical assistance is a crime <strong>of</strong> genocide. This action, together with the cutting <strong>of</strong> thewater supply and electricity, have put into effect a slow-motion process <strong>of</strong> genocide.(…)(27) (g) (…) The attitude <strong>of</strong> defiance <strong>of</strong> the Serbs towards the United Nations ingeneral is a matter that should concern the Council. The Serbs obviously have littlerespect for UNPROFOR’s authority.’409. It was known to the UN – and to the State <strong>of</strong> the Netherlands – that genocide threatenedin Srebrenica even before Dutchbat was dispatched to Srebrenica. The UN accepted asearly as 1993 that genocide could be committed in Srebrenica. It was precisely theprevention <strong>of</strong> genocide that was the object behind the setting up the Srebrenica SafeArea. Moreover, it is clear from the UN Report <strong>of</strong> 30 April 1993 referred to above thatthe Bosnian Serbs already at that time had no respect for the UN and its resolutions. The© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com171
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