Although obligation in the military world implies a strict duty to obey the orders that are given, this obligation is conditional on the lawfulness of these orders. In other words, soldiers have the ...moral duty to disobey orders that would lead them to commit unlawful actions. Therefore, ethical disobedience is an important feature of the armed forces and cannot be ignored. This text contemplates an extended version of this logic by considering whether or not soldiers have the duty to disobey lawful orders that, if respected, will likely result in harm to civilians, such as war crimes and/or genocide. Based on the examples of the genocide of Srebrenica in 1995 and Rwanda in 1994 and from moral arguments, this text discusses that ethical disobedience should include such a possibility.
Offering a worked example of autoethnographic theological reflection, this article suggests key aspects of 'theological reflection in extremis'; that is, theological reflection arising out of ...contexts marked by extreme suffering and/or injustice that do not admit of ready theological resolution. It is suggested that such theological reflection (TR) is marked by a willingness to respond to the invitation to go beyond one's own situation and capacities, to accept overwhelming and powerlessness, to adopt the undefended posture of Christian hospitality, to submit to the tutelage of material things, as well as to take up the stance of attentive presence and witness to the suffering other. Out of such a process of TR, insight and revelation may be born. This process is narrated through the author's visit to Bosnia and reflections on the visit, including a sequence of poems which are offered as a form of authoethnographic theological reflection.
On 27 June 2017, in the Stichting Mothers of Srebrenica case, The Hague Court of Appeal applied the effective control test in determining attribution and found that the Netherlands was responsible ...for the failure of the Dutch battalion (Dutchbat) acting as a part of the UN Protection Force (UNPROFOR) to protect civilians from the Srebrenica massacre in 1995. This judgment is of considerable significance because the court renounced the preventive approach to the effective control test, to which the Dutch courts had repeatedly declared their adherence, and reverted to the traditional (presumptive) approach. The preventive interpretation was originally proposed with a view to justifying much broader attribution to troop-contributing nations (TCNs). However, quite interestingly, the Court of Appeal reached the conclusion that the Dutchbat’s conduct was attributable to the Netherlands without recourse to the preventive approach. The present study argues that the legal framework for the attribution of UN peacekeepers’ conduct has developed in such a manner that the fair allocation of responsibility and the effectiveness of UN peacekeeping operations are in equilibrium. In that sense, the effective control test should be located at the interface between the law of international responsibility and the law of international organizations. It is illustrated that not only does the preventive interpretation fail to strike a fair balance between the institutional considerations and the need to provide remedies for victims of peacekeepers’ misconduct, but also the presumptive approach may lead to effective remedies while having due regard for the institutional considerations.
In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a 'safe area' by ...the United Nations ('UN'). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops' other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights ('ECHR' or 'Convention') from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life. Keywords: Mothers of Srebrenica, Right to Life, Prohibition of Torture, ECHR, Positive Obligations, Duty of Means
On 19 July 2019, the Dutch Supreme Court (Hoge Raad) rendered the final judgment in the proceedings led by Stichting Mothers of Srebrenica ('Mothers'), a foundation established under the Dutch law, ...in the interests of more than 6,000 surviving relatives of the Srebrenica genocide. Mothers and ten individual plaintiffs alleged multiple failures by the Dutch State regarding the fall of the Srebrenica safe area designated by the United Nations ('UN') and the fate of more than 30,000 people who had fled to either a nearby compound of the Dutch battalion or other locations, including about 7,000 Bosniac males. However, the Supreme Court established the State's responsibility only regarding a group of approximately 350 males who had been allowed inside the Dutchbat compound but were then handed over to the Bosnian Serbs. This contribution examines from the perspective of the right to fair trial how the courts determined the State's liability for damages in relation to these males. It questions whether the parties to the proceedings had an opportunity to present their arguments on facts and evidence as to a percentage of the State's liability for damages. It also views the Supreme Court's determination of the liability at 10% as problematic. Keywords: Mothers of Srebrenica, ECHR Article 6, Fair trial, Adversarial hearing, Reasoning of judicial decisions
This article provides an analysis of the Dutch Supreme Court judgment in the
Mothers of Srebrenica
case, placing it in its context, and comparing it with earlier and related decisions, in particular ...the judgments in the cases of
Nuhanović
and
Mustafić
. The
Mothers of Srebrenica
is a foundation established to represent the interests of the approximately 6000 surviving relatives of the victims of the fall of Srebrenica during the conflict in the former Yugoslavia (1995). The foundation holds the Netherlands responsible for not having done enough to protect the victims of the Srebrenica genocide. This contribution addresses the attribution of the conduct of the United Nations peacekeeping contingent to the troop-contributing State (the Netherlands), followed by the wrongfulness of the peacekeepers’ conduct and the State’s attendant liability for damages suffered by the victims. It is argued that the Dutch State’s international responsibility was only engaged because of the exceptional circumstances present in Srebrenica at the time. In the ordinary course of events, the liability of troop-contributing States is unlikely to be engaged if the Supreme Court’s review standard were to be applied.
Mass atrocities are episodes of violence that do not unfold at random: (a) there are recurrent patterns in the forms that violent behavior takes; (b) the chain of events in which violence unfolds is ...patterned internally, that is, there are processual patterns. These patterns are not the mere outcome or reflection of larger structures such as ethnic conflict; violence instead has patterns (including processual patterns) with a logic of their own. By tracing the onset and early phases of massacres in Srebrenica and Rwanda, it is shown that patterns of violence are shaped by local emotional dynamics. The paper builds on recent findings in the micro-sociology of violence by Collins and others and on Horowitz’s research on the processual character of violence in riots.
While the law on state responsibility is a well-developed field in international law, the potential for responsibility on the part of the state as a result of events taking place during peacekeeping ...missions is a fairly novel phenomenon. Internationally, claims in this field have been brought before the European Court of Human Rights and the International Court of Justice. National courts, on the other hand, have heard a total of six cases on the matter, in Belgium, the UK, and the Netherlands, all eventually apportioning responsibility to the state. This paper explores the effect that the potential for responsibility, as manifested in the outcomes of these recent cases, may have on state behaviour with respect to its future contributions to peacekeeping. The paper combines an exploration of the relevant adjudged cases with views collected from experts and academia in order to formulate three hypotheses on the effect of the potential for responsibility on future state behaviour. These hypotheses are then applied to the example of the Netherlands in the aftermath of a series of decisions finding it responsible for events taking place during its involvement in peacekeeping in Bosnia and Herzegovina in the 1990s. Due to the recent timing of the cases, the paper concludes with preliminary findings on each of the hypotheses, thereby opening the door to future research on the topic.
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