Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
436. The fact that the State of Bosnia-Herzegovina can also bring its own claims against theUN and the State of the Netherlands is of no concern to Plaintiff and Foundation in thepresent case. The State of Bosnia-Herzegovina has brought no pertinent action in thepast twelve years and to the present has shown no evidence of any such intention.437. Given that Plaintiff and Foundation can personally enforce rights under the internationalconventions, the issues of damage and the causal relationship will be addressed below.II.7. Damage and causal relationship438. Plaintiff has suffered damage as a consequence of the failure of the UN and the State ofthe Netherlands to fulfill their obligations, or at least by their wrongful actions oromissions. It holds also that Plaintiff has suffered damage as a result of those breachesof norms of international law.439. The damage to Plaintiff consists of the fact that the Plaintiff’s family has been murderedand the fact that she has lost her hearth and home in Srebrenica. As far as the family thatPlaintiff has lost, Plaintiff refers to her statement (see, Exhibits 1 through 10). In Bosnia– where there is little or no adequate social security – the loss of the breadwinner and theloss of one or more children, who normally take financial care of the parents when theycan no longer work, is also a financial disaster as well as being an emotional one.Plaintiff wishes her damage to be further quantified in a procedure for assessment of theloss. In addition, Plaintiff claims an advance on her damage of EUR 25,000 for eachPlaintiff.440. The Foundation represents the interests of the surviving relatives from Srebrenica. Allthese surviving relatives share comparable circumstances with Plaintiff. These survivingrelatives have jointly attempted through the offices of their lawyers to obtain that whichis claimed by conferring with the UN and the State of the Netherlands (see, Article3:305a paragraph 2 Civil Code (Burgerlijk Wetboek). Thus, for example, attempts weremade to enter into consultation on these matters by letter of 18 October 2002 and 4October 2006 addressed to the UN and by letter of 11 April 2006 addressed to the State© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com182
of the Netherlands. The UN and the State of the Netherlands have not accepted thoseinvitations to begin consultations. Now the Foundation has no alternative other than theinstitution of legal proceedings in order to obtain the judicial declaration in the terms yetto be determined.441. It was shown above that if a start had been made with defence, or at least some form ofresistance, the Bosnian Serbs would not have captured the entire Safe Area. The decisionto capture the entire Safe Area was taken only on 9 July 1995 when no defence wasoffered. That has already been extensively addressed above on the basis of sources andwas additionally confirmed by the ICJ in its Decision van 26 February 2007, under legalconsideration 283. It was only the capture of the entire Safe Area that made possible themurder of 8,000 to 10,000 persons and the driving away of Plaintiff from hearth andhome. Those consequences, as has been elaborated above, were foreseen. There is adirect relationship between the culpable conduct of the UN and the State of theNetherlands and the consequences that occurred. The same applies for the relationshipbetween the non-reporting of the observed war crimes and the murders that weresubsequently committed. If reports had been made, the lives of many could have beensaved.III. Defence offered by the State of the Netherlands and UN442. Plaintiff holds the UN and the State of the Netherlands jointly responsible for the fall ofthe Srebrenica Safe Area and the events that thereupon could occur. Prior tocommencing these proceedings the legal representatives of Plaintiff and the personswhose interests are promoted by Foundation held both the State of the Netherlands andthe UN liable. The State of the Netherlands summarily dismissed any question ofliability and did not wish to enter into consultation on satisfaction. The State of theNetherlands did, however – through its ambassador in Sarajevo – advance a number ofarguments in 2004 that would argue against liability. Plaintiff and the Foundation willbriefly address those arguments below. Further, the possibility exists that the UN willattempt to plead immunity under Article 105 of the UN Charter. Plaintiff and theFoundation will also address that argument.© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com183
- Page 131 and 132: 302. The UN and the State of the Ne
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436. The fact that the State <strong>of</strong> Bosnia-Herzegovina can also bring its own claims against theUN and the State <strong>of</strong> the Netherlands is <strong>of</strong> no concern to Plaintiff and Foundation in thepresent case. The State <strong>of</strong> Bosnia-Herzegovina has brought no pertinent action in thepast twelve years and to the present has shown no evidence <strong>of</strong> any such intention.437. Given that Plaintiff and Foundation can personally enforce rights un<strong>der</strong> the internationalconventions, the issues <strong>of</strong> damage and the causal relationship will be addressed below.II.7. Damage and causal relationship438. Plaintiff has suffered damage as a consequence <strong>of</strong> the failure <strong>of</strong> the UN and the State <strong>of</strong>the Netherlands to fulfill their obligations, or at least by their wrongful actions oromissions. It holds also that Plaintiff has suffered damage as a result <strong>of</strong> those breaches<strong>of</strong> norms <strong>of</strong> international law.439. The damage to Plaintiff consists <strong>of</strong> the fact that the Plaintiff’s family has been mur<strong>der</strong>edand the fact that she has lost her hearth and home in Srebrenica. As far as the family thatPlaintiff has lost, Plaintiff refers to her statement (see, Exhibits 1 through 10). In Bosnia– where there is little or no adequate social security – the loss <strong>of</strong> the breadwinner and theloss <strong>of</strong> one or more children, who normally take financial care <strong>of</strong> the parents when theycan no longer work, is also a financial disaster as well as being an emotional one.Plaintiff wishes her damage to be further quantified in a procedure for assessment <strong>of</strong> theloss. In addition, Plaintiff claims an advance on her damage <strong>of</strong> EUR 25,000 for eachPlaintiff.440. The Foundation represents the interests <strong>of</strong> the surviving relatives from Srebrenica. Allthese surviving relatives share comparable circumstances with Plaintiff. These survivingrelatives have jointly attempted through the <strong>of</strong>fices <strong>of</strong> their lawyers to obtain that whichis claimed by conferring with the UN and the State <strong>of</strong> the Netherlands (see, Article3:305a paragraph 2 Civil Code (Burgerlijk Wetboek). Thus, for example, attempts weremade to enter into consultation on these matters by letter <strong>of</strong> 18 October 2002 and 4October 2006 addressed to the UN and by letter <strong>of</strong> 11 April 2006 addressed to the State© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com182
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