Writ of summons - Van Diepen Van der Kroef

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seq. of the NIOD Report). These matters did not, however, lead to the UN or the State ofthe Netherlands taking action or measures.73. Anaesthetist Naval Captain Schouten noted in his diary regarding the distressingsituation (see page 1930 of the NIOD Report):‘‘The picture gradually emerged of the bankruptcy of the UN actions. The Serbs just doas they please, and the only thing we do in return is ‘diplomacy’ and ‘conferences’.’Importance of the observation posts74. Discussions were held in the final days of May 1995 on the position of the observationposts (Exhibit 17 - map, page 212 Summary of the NIOD Report). Withdrawing from anumber of less important observation posts (OPs) was proposed in order to be able todefend the important observation posts. Everyone was agreed that the observation postswere of the greatest possible importance. In this connection the NIOD Report states onpage 1991:‘it had been doing all in its power for months to ensure that the OPs functioned as wellas possible with the few resources they had at their disposal. At the same time, this wasalmost the only justification of Dutchbat's existence, because it was only from the OPsthat a degree of protection could be offered to the population.’75. Despite this realization that the OPs were of vital importance for the protection of thecivilian population, preparations were taken in the night of 28 to 29 May 1995 towithdraw from six OPs, should that be necessary. On 29 May 1995 guidelines wereissued by Lieutenant General R.A. Smith, Commander HQ UNPROFOR in Sarajevo,known as the Post Airstrike Guidance (Exhibit 18), which, according to the NIODReport, provided that OPs must remain manned until serious danger threatened (see page1991 of the NIOD Report). The Dutch Parliamentary Enquiry (see page 186 thereof) alsoreferred to the part of the Post Airstrike Guidance in which it was set out by Smith thatthe mandate was secondary to the safety of UN personnel. Point 7 of the stated:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com40
‘I have been directed, today 29 May 1995, that the execution of the mandate issecondary to the security of UN personnel. The intention being to avoid loss of lifedefending positions for their own sake and unnecessary vulnerability to hostage taking.My interpretation of this directive is at paragraph 9b.’That instruction to General Smith, the origin of which is however unclear, if it were tobe taken literally does not give the mandate its proper due, and consequently in that casecould be in breach thereof. Plaintiff notes incidentally that a military officer cannot varythe mandate. Point 7 above refers on the issue of interpretation to point 9b of the PostAirstrike Guidance, which passage states:‘Positions that can be reinforced, or it is practical to counter attack to recover, are notto be abandoned. Positions that are isolated in BSA territory and unable to besupported may be abandoned at the Superior Commander’s discretion when they arethreatened and in his judgment life or lives have or will be lost.’Plaintiff notes here for the sake of completeness that ‘BSA’ refers to: ‘Bosnian SerbArmy’, in this writ of summons referred to as VRS.76. In the case of the observation posts none of the conditions for withdrawal (assummarised under point 9b of the Post Airstrike Guidance) were satisfied. Anobservation post is by definition a position that has already been strengthened, andwhich can be further strengthened (or: ‘reinforced’ as meant in the quotation above).Observation posts can also be recovered. The observation posts formed part of the SafeArea and by definition did not lie within the Serbian (‘BSA’ ) territory, let alone that theywere isolated and also that it was impossible to support them. There was also noquestion of any consideration by the Superior Commander that lives were in danger.77. It follows from the above that on the ground also of the Post Airstrike Guidance theobservation posts ought not to have been abandoned. On the contrary, the Post AirstrikeGuidance gave precisely the order not to withdraw from those positions. All isolatedpositions in Serbian territory could be abandoned whenever lives were imperilled or© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com41
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 and 22: …Should UNPROFOR’s presence pro
Page 23 and 24: 30. To reiterate here, the question
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: eference to the failure to act of D
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
Page 161 and 162:
- secondly, it was evident that the
Page 163 and 164:
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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