Writ of summons - Van Diepen Van der Kroef

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have recourse to force, this will be in clearly defined circumstances, triggered by theactions of one or another party to the conflict.’(…)‘No. 30Safe Areas can be made somewhat more effective and manageable. On the other hand,because of difficulties in their implementation as well as their limited effect, it must berecognized that Safe Areas do not in themselves represent a long-term solution to thefundamental conflict in Bosnia and Herzegovina, which requires a political andterritorial solution. I therefore view the safe-area concept as a temporary mechanismby which some vulnerable populations can be protected pending a comprehensivenegotiated political settlement. In this respect, UNPROFOR’s protection of the civilianpopulation in Safe Areas must be implemented so as to provide a positive contributionto the peace process, and not to detract from it.’Interpretation of the text of the UN resolutions and Commentary of the Secretary-General28. As appears from the above, the Secretary-General expressly declared that the aim was toprotect the civilian population in the Safe Area and not only the territory. It would beunimaginable that the UN would protect a given territory only with the sole intention ofprotecting the land. The land serves the people, after all, and not the other way round.Territory is only a derived interest from the interest of the people who find themselveswithin that territory.29. It follows further from the UN resolutions that Close Air Support could be used toprotect the civilian population of the Safe Areas and UNPROFOR against attack.Number 10 of UN resolution 836 provides that use of air power is permitted to supportUNPROFOR in the performance of its mandate as defined in Numbers 5 and 9 of theUN resolution. Numbers 5 and 9 see as the objective of the Safe Area that attacksagainst the Safe Area will be deterred, and also that force is permitted for the protectionof humanitarian convoys. Air support may therefore be used to deter an attack on thecivilian population and to protect humanitarian convoys.© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com22
30. To reiterate here, the question of the way in which the UN determined its means is notrelevant for Plaintiff. What is determinative is that the UN promised the civilians ofSrebrenica protection and that the UN itself determined what means of protection shouldbe used. As has been raised above and will be examined still further below, the issue iswhether, in making those decisions, the UN was fully cognizant of the extent of theexplosive situation, most particularly of the violent past history, of the crimes committedand alleged on both sides since 1991, and of the catastrophic humanitarian situation.31. The responsibility of the UN for the protection of the civilians and the territory is alsorecognised in the NIOD Report. On that matter the NIOD Report states on page 1223:‘In his statement of 14 March, Morillon placed great responsibility on UNPROFORand the United Nations. (…) The Bosnia-Hercegovina Commander now forced thepeacekeeping mission to protect an area and its inhabitants.’I.3. Rules of engagement32. The so-called ‘rules of engagement’, the rules that determine when UNPROFOR mightuse force, have been kept secret from Plaintiff. Plaintiff requested the rules ofengagement from the State of the Netherlands (Exhibit 12) and from the UN (Exhibit13). The State of the Netherlands and the UN declined to grant access to thosedocuments (Exhibits 14 and 15). Plaintiff therefore lodged a so-called WOB-applicationunder the Government Freedom of Information Act (in Dutch ‘Wet OpenbaarheidBestuur’) in order to gain the desired and necessary insight. That application was refusedon 6 October 2006, against which decision Plaintiff lodged an objection on 23 October2006. That objection was denied on 20 February 2007. Plaintiff has meanwhile lodgedan appeal to the court. The situation that here arises is that the State of the Netherlandsand the UN are possessors of evidentiary material and do not wish to furnish insight intothat evidence. That circumstance should be interpreted against the State of theNetherlands and the UN.33. The rules of engagement result from the mandate founded on the UN resolutions andought here to cause justice to be done. The rules of engagement arise – in brief – as© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com23
Page 1 and 2: WRIT OF SUMMONSDISTRICT COURT, THE
Page 3 and 4: IN ORDER:on Wednesday, thetwo thous
Page 5 and 6: - every request by the inhabitants
Page 7 and 8: 8. The fate of the civilian populat
Page 9 and 10: IV Tender of evidence 446I Facts5.
Page 11 and 12: NIOD. This Report is referred to as
Page 13 and 14: 12. The Yugoslav People’s Army (o
Page 15 and 16: ‘Prior to departing, he addressed
Page 17 and 18: - UN resolution 816 (31 March 1993)
Page 19 and 20: No. 4:Decides to ensure full respec
Page 21: …Should UNPROFOR’s presence pro
Page 25 and 26: UN and the State of the Netherlands
Page 27 and 28: Brigade. In addition, the State of
Page 29 and 30: 43. The choice in favour of deploym
Page 31 and 32: The government parties replied to t
Page 33 and 34: population during the training as
Page 35 and 36: Potocari/Srebrenica. This chain of
Page 37 and 38: 63. As appears from the above, and
Page 39 and 40: eference to the failure to act of D
Page 41 and 42: ‘I have been directed, today 29 M
Page 43 and 44: leaders (Milosevic, Karadzic and Ml
Page 45 and 46: observation post was not carried ou
Page 47 and 48: attack on the Safe Area on 6 July 1
Page 49 and 50: single shot being fired and OP-F wa
Page 51 and 52: immediate and robust reaction Nicol
Page 53 and 54: know what Dutchbat itself would do
Page 55 and 56: that the enclave was continuously e
Page 57 and 58: ‘You are to use all means at your
Page 59 and 60: Commander therefore gave the order
Page 61 and 62: he proposed to have Karremens arres
Page 63 and 64: Brantz, to establish that there was
Page 65 and 66: officers and the State of the Nethe
Page 67 and 68: had any purpose to go ahead with th
Page 69 and 70: Voorhoeve (see also number 307 of t
Page 71 and 72: y VRS soldiers in Dutch uniform and
Page 73 and 74:
population: medical matters (Dutchb
Page 75 and 76:
OP-N161. The capture of OP-N is des
Page 77 and 78:
Brantz (Tuzla)↕Karremans, Franken
Page 79 and 80:
‘The first line of resistance to
Page 81 and 82:
180. Plaintiff Mujić states (see E
Page 83 and 84:
The flight to the UN compound189. D
Page 85 and 86:
193. It is incomprehensible that Du
Page 87 and 88:
soldiers let that be known when the
Page 89 and 90:
Other points concerned forced evict
Page 91 and 92:
‘On 12 and 13 July 1995, upon the
Page 93 and 94:
statements put in the proceedings a
Page 95 and 96:
lying on a wagon. The Dutchbat sold
Page 97 and 98:
228. Only one Dutchbat officer was
Page 99 and 100:
‘UNMO source about 1,000 men take
Page 101 and 102:
night-time. I did not dare to leave
Page 103 and 104:
239. Plaintiff Hotič states (see E
Page 105 and 106:
People had no food or water, nor we
Page 107 and 108:
During all of this the Dutch soldie
Page 109 and 110:
group and they were raped. I was ve
Page 111 and 112:
four or five Dutchbat soldiers were
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
Page 135 and 136:
of the Safe Area and was not immedi
Page 137 and 138:
weapons of the VRS, or at least to
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
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
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- secondly, it was evident that the
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international customary humanitaria
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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 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 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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