Writ of summons - Van Diepen Van der Kroef

‘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