Writ of summons - Van Diepen Van der Kroef

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III.1. Defence by the State of the Netherlands443. The State of the Netherlands initially characterised its own actions in a most positivelight. The Ministry of Foreigh Affairs issued a public statement which was given a verywide circulation, also abroad. The text of that statement of 14 July 1995 stated (see, page2373 of the NIOD Report):‘Praise has been expressed from all quarters, not least also from that of the SecurityCouncil, for the professional and courageous conduct of the Dutch blue helmets. Praisehas been expressed in particular for their attempts to block the Bosnian Serb advancefrom the south and to the crucial help that they provided to the population during thetransfer from Srebrenica to Potocari. (…) Dutchbat did everything in Srebrenica thatlay within its abilities to prevent the fall of the enclave and adequately to protect thepopulation of Srebrenica but unfortunately did not succeed in that. (…) Dutchbat ispresently sharing its scarce food supplies with the population and is attempting to exerta positive influence on developments.’In the days that followed the State of the Netherlands lavishly praised the conduct ofDutchbat. Thus, Van Mierlo referred in the European General Council of 18 July 1995to the ‘courageous and professional conduct of Dutchbat’ (see, page 2377 of the NIODReport). It should have become clear that the facts were different to those that the Stateof the Netherlands initially presented to the world.444. The statement of 14 July 1995 cited above was unjustly laudatory of the conduct ofDutchbat. Moreover, there was no longer any refugee present on the compound on thatdate. As has been set out above, fierce criticism of the conduct of Dutchbat wasexpressed by countries that were reasonably well-informed on the actual state of affairs(page 2374 of the NIOD Report). France raised the issue that Srebrenica had fallenwithout any noticeable response from UNPROFOR. The Dutch UN soldiers had,according to France, offered too little resistance and were accessory to ethnic cleansing.President Chirac stated that the conduct of Dutchbat came down to the fact thatUNPROFOR in Srebrenica (see, page 2376 of the NIOD Report):© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com184
‘militairement avait mal conduit.’[Lawyer’s translation:in military terms had failed.]445. The then Cabinet under the premiership of Prime Minister Kok resigned following thepublication of the NIOD Report in April 2002. In his explanatory memorandum to thedecision to resign Kok stated that the Government wished ‘to manifest the politicalcontributory responsibility’ for the situation. Kok also stated that the internationalcommunity had failed in the protection of the persons in the Srebrenica Safe Area(statement of Kok of 16 April 2002 to the Speaker of the Lower House). In Kok’s viewthe international law apect of the case exonerated The Netherlands (it was not the stateproviding troops that was responsible but the UN). It has already been addressed abovethat The Netherlands itself repeatedly exercised effective control and that the questionwho officially exercised command and control is irrelevant. That Kok’s internationallaw approach is incorrect follows, for example, also from the earlier statement ofMinister Voorhoeve (see, page 2283 of the NIOD Report):‘The Minister of Defense, Voorhoeve, adopted the position with NIOD that these rulesrelating to Command and Control in The Netherlands, and the question where theindividual responsibilities lay, was more or less clear, but that in practice it transpiredthat it was not possible to separate these sorts of matters, with the result that theybecame entwined. In his view, it was possible to argue logically in pure publicinternational law terms that The Netherlands had placed contingents at the disposal ofthe UN, and that The Netherlands only retained the right to recall those contingents butthat otherwise everything was a matter for the UN. To this The Hague would say: thesesoldiers are now UN blue helmets, and consequently this is not our problem. But that’snot how matters were in practice, said Voorhoeve.’446. In a letter of 30 September 2004 to the Bosnian lawyers of Plaintiff, the State of theNetherlands maintained the position that the premises underlying the UN resolutions didnot reflect reality. In particular, the VRS would not be overly concerned about its© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com185
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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
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277. Plaintiff Hasanović was born
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Subašić282. Plaintiff Subašić w
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IILegal characterisationIntroductio
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the United Nations, Advisory opinio
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302. The UN and the State of the Ne
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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
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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.
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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
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: of the Netherlands. The UN and the
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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