Writ of summons - Van Diepen Van der Kroef

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415. Moreover, the Dutchbat soldiers – without themselves being endangered – should in anyevent have reported the crimes that they witnessed. Dutchbat wrongfully neglected to doso (see, the UN Report under number 474):‘It is harder to explain why the Dutchbat personnel did not report more fully the scenesthat were unfolding around them following the enclave’s fall. Although they did notwitness mass killing, they were aware of some sinister indications. It is possible that ifthe members of the battalion had immediately reported in detail those sinisterindications to the United Nations chain of command, the international community mighthave been compelled to respond more robustly and more quickly, and that some livesmight have been saved. This failure of intelligence-sharing was not only limited to thefall of Srebrenica, but an endemic weakness throughout the conflict, both within thepeacekeeping mission, and between the mission and Member States.’416. The Report of the French Parliament contains an explanation why the observed warcrimes were not reported, namely, out of fear that the position of the Dutchbat soldiersheld hostage could possibly be endangered (see, page 102, Part 1, the Report of theFrench Parliament). That consideration is gravely culpable. The non-reporting of theobserved war crimes also constitutes a breach of the right to life, all the more so as suchreporting could have saved the lives of many.Humanitarian care417. Human rights include, inter alia, the right to food, accommodation and medical care.This right to humanitarian care is acknowledged under customary law (see, A. Simon,op. cit., page 184). Consequently, Dutchbat was obliged to attend to the humanitariancare of the population in the Safe Area (see, A. Simon, op. cit., page 184 et seq.).That Dutchbat evidently did not have available to it sufficient means of coercion was –as was shown above – a direct consequence of a political consideration that in partrelated to the desirability of being able to procure helicopters, poorly reasoned decisionmaking,the desire to deploy the Air Brigade at all costs and a failure of intelligence. TheState of the Netherlands cannot argue the absence of means against Plaintiff. The UN© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com174
and the State of the Netherlands accepted without noticeable response that thehumanitarian relief was seriously obstructed.II.5.d. Legal consequences of responsibility under public international law418. It is a principle of public international law that states that commit a wrongful act areobliged to undo the damage that occurred as a result of the wrongful act. If that is notpossible, compensation must be paid. This is made clear by the ILC Articles for States tobe addressed further below. The ICJ in its Decision of 26 February 2007 held that therelevant ILC Articles reflected the international customary law in force (see, legalconsideration 460 of that Decision):‘The principle governing the determination of reparation for an internationallywrongful act is as stated by the Permanent Court of International Justice in the Factoryat Chorzów case: that “reparation must, so far as possible, wipe out all theconsequences of the illegal act and reestablish the situation which would, in allprobability, have existed if that act had not been committed’ (…)The ICJ referred under legal consideration 460 also to Article 31 ILC Articles for States,which again confirms that the ILC Articles for States contain the international customarylaw in force. It is self-evident that restoration in the present case of the murder of 8,000to 10,000 persons and the deportation of an even larger group of persons is impossible.419. Where restitution is not possible compensation must be paid (see, the continuation oflegal consideration 460):‘Insofar as restitution is not possible (…) it is a well-established rule of internationallaw that an injured State is entitled to obtain compensation from the State which hascommitted an internationally wrongful act for the damage caused by it.’The ICJ referred here to Article 36 of the ILC Articles for States. Plaintiff notes that it isaware that Articles 31 et seq. of the ILC Articles for States aim to regulate only theclaim of one state against another state. That is also expressly stated in Article 33© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com175
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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
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four or five Dutchbat soldiers were
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shocked by what he had evidently se
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follows:‘An alternative position
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‘We were deported to Tuzla later
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I arrived at the barrier shortly th
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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 141 and 142: 326. Instead of taking action from
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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: under customary law. A duty on stat
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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Writ of summons - Van Diepen Van der Kroef

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