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Bittersweet victory for the Mothers of Srebrenica

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Women hold a banner that reads SrebrenicaState responsibility remains a contested issue, being lodged, as it is, in ideas of comity and international law. The Dutch Supreme Court further elaborated on that idea in finding that the Netherlands was liable for the deaths of over 300 Bosniawith n Muslim men and boys at Srebrenica in Bosnia-Hercegovina in July 1995.

They had been part of a broader group of 5000 refugees, including women and children, who had been sheltering with Dutch UN peacekeepers known as Dutchbat. The action had been launched by the relatives of the victims under the umbrella grouping 'Mothers of Srebrenica'.

The Dutch-administered compound of Potocari had offered promise of haphazard security. Bosniaks were attempting to flee to it for safety. Reassurances were made that they would be protected under the broader umbrella of UN safety and international law.

The Bosnian Serb forces, under the command of Ratko Mladic, were on the offensive after three years of exhausting conflict. The racial and ethnic lines of Bosnia were being drawn up by means of military expulsion and atrocities. Their desire to acknowledge the Dutch protective presence was qualified at best.

The beleaguered Dutch peacekeepers, rattled and poorly armed, had their positions in the enclave shelled, though this took place with intensity after Dutch F-16 fighters initiated strikes at the request of Dutchbat. Mladic's forces did not take kindly to the move, threatening the slaughter of Dutch hostages and demanding the surrender of Bosniak weapons.

With the first killings of unarmed Muslims taking place on 13 July, peacekeepers exchanged 5000 Muslims in the enclave for 14 Dutch peacekeepers. A historical arrangement had been writ in blood.

The judges argued that Dutchbat should have 'taken into account the possibility' that the men in their care would have faced the threat of genocide. Surely, argued the plaintiffs, the Dutch forces should have been aware that handing over Bosniak men and boys to the Serb forces would have resulted in their deaths.

The argument there is crucial — Dutchbat became an accessory to genocide.

In the assessment of the court, 'It can be said with sufficient certainty that, had Dutchbat allowed them to stay at the compound, these men would have remained alive. By cooperating in the deportation of these men, Dutchbat acted unlawfully.'

The verdict does have one glaring weakness. It distinguishes victims. It cleaves them by means of legal distinction. In the words of the articulate president of Mothers of Srebrenica, Munira Subasic, 'The court definitely did not recognise justice for the other groups of victims.' The verdict exonerated the Dutch state over the deaths of more than 7000 men killed in and around the environs of Srebrenica.

There were those who ventured through the forests, a lethal journey termed the road of death. These were specifically exempted from consideration in the verdict — Dutchbat could not be held responsible for their plight because those refugees had not fled directly to the UN compound but 'to the woods in the vicinity of Srebrenica'.

But the point the court makes, more starkly, is that the Dutch forces could not be held liable for all refugees simply because all 25,000 or so could not have been admitted to the compound in Potocari. In some ways, there is something gruesomely ironic here — that touted logistical problem ended up seeing 'The vast majority of the refugees ... taken to safety by the evacuation.'

For all its notable weaknesses, the decision does have one cardinal point. It draws out, uncomfortably, the dark links between those who should be aware, yet proceed with wilful blindness in a course of action that does have disastrous consequences, and those who are fully wilful in perpetrating them.

The verdict also emphasises the essential role of reporting atrocities — Dutchbat, it noted, had not complied with its reporting obligations as fastidiously as it might have. But on this point, there could be no legal liability.

The shadow of the Holocaust, with its collaborative agents, be they local administrations of governments, or indifferent authorities, did perform similar acts when it came to refusing assistance to Europe's Jewry. It was far better to act with cold, rational indifference, than understanding engagement. No one ever wants to see the worst, let alone contemplating it. Folly is often the result.

An underreported fact is that the Dutch state has also been found to have acted unlawfully regarding Srebrenica in earlier Dutch Supreme Court decisions. Dual attribution, for instance, has been accepted in Dutch law — that both the Netherlands and the UN had effective control over the same conduct regarding the refugees.

The state has also attempted to make amends, albeit on a smaller scale. Last April, the Dutch Ministry of Defence announced that the government would be paying 20,000 Euros in compensation to relatives of some Muslims removed from the camps. But it still takes individuals such as spokesman Klaas Meijer of the Dutch Ministry of Defence to remind detractors 'it was the Bosnian Serb forces who are responsible for the killings'.

The most moving feature of this legal claim is that it must, ultimately, move beyond law and into the realm of human conduct. As Subasic explains, it is through the mothers and those children that reconciliation is possible, one that is not based on the incoherent hatreds of race and political ruthlessness, but the allure that is possible with kindred spirits. Sound legal accountability can, however, help, but its steps can prove infantile.


Binoy KampmarkDr Binoy Kampmark was a Commonwealth Scholar at Selwyn College, Cambridge. He lectures at RMIT University, Melbourne.

Topic tags: Binoy Kampmark, Srebrenica, Bosnia, Netherlands



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Existing comments

Mention is made of "the dark line between those who should be aware, yet proceed with wilful blindness in a course of action that does have disastrous consequences, and those who are fully wilful in perpetuating them" This has much wider applications. Usually there is self-interest in turning a blind eye. Those who were aware of child abuse, but chose to disregard it, lest the group of which they were part should suffer. The Church itself, minimising the field in which it needed to update itself in the light of the new realisations regarding the Gospels on which its origins were based, and applying only cosmetic treatment to misleading traditions. All in a good cause, but not good enough. Too little attention to the 'Whistle blowers' who paid the price of refusing to compromise.

Robert Liddy | 21 July 2014  

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