Court Watch
Legal experts, however, remain skeptical of Bo- livia’s likelihood of prevailing. If the ICJ was to find or impose a duty on Chile to negotiate with Bo- livia, that duty should fall short of requiring Chile to cede its sovereignty. Regardless, the high stakes for both sides is likely to result in a long battle. However, at least one legal expert from the region identifies a possible path of success for Bolivia based on Chile’s unilateral offers to engage in ne- gotiations with Bolivia. Consequently, by making previous offers to negotiate, Chile has imposed upon itself an obligation to meet Bolivia at the table.
With Chile challenging the ICJ’s jurisdiction, Boliv- ia’s demand is suspended, and the resulting legal challenge could take up to 18 months to decide. In the meantime, there is some indication that the issue will be solved through diplomatic back channels. Bolivia has until November 14, 2014, to respond to Chile’s challenge.
* Submitted by Stephen Steele
Dutch Court Rules Netherlands Liable for Deaths in Srebrenica Massacre
In July 1995, in what became known as the Sre- brenica massacre, Bosnian Serbs killed in excess of 7,000 Muslim men as they overran Srebrenica. The slaughter occurred in a United Nations (UN) safe area housing tens of thousands of refugees and guarded by some 600 lightly armed Dutch in- fantry forces, known as the Dutchbats. Leading up to the massacre, Serbian forces attacked and shelled the area, eventually taking 30 Dutchbats hostage. The siege created a great unrest among the refugees, thousands of whom fled the area in the face of the advancing Serbs.
This past July, the District Court of The Hague de- clared the Netherlands liable for the deaths of 300 of the men and boys killed on that fateful day more than 19 years ago. The lawsuit against the Nether- lands was filed by the Mothers of Srebrenica, an
organization composed of the mothers and wid- ows of the deceased. The Court held the Dutch lia- ble because “the State [had] effective control over providing humanitarian assistance to and prepa- ration of Dutchbats’ evacuation of the refugees in the mini safe area.” Essentially, the Dutchbats gave up without a fight, laying down their arms when confronted. Some outside investigations have suggested such a weak effort to protect the civilians is an act of genocide. In its conclusion, the Court explained the Dutch soldiers wrongly failed to report the observed war crimes to the UN chain of command and were liable for the unlaw- ful deportation of male refugees, many of whom were never seen alive again. The Court held the Netherlands liable for the deaths of only 300 of those killed because they did not have “effective control” of the other victims. Nevertheless, the Court said the Netherlands government is legally responsible for the 300 deaths that occurred in Srebrenica, and should pay compensation to their families.
Although the decision was handed down by a lower Dutch court, making the judgment appealable, the Dutch Supreme Court ruled last year that the gov- ernment was responsible for the deaths of three Muslims murdered shortly after Bosnian Serbs forced them to leave a UN designated safe area controlled by the Dutchbats, causing the decision to possibly have other far-reaching implications. The judgments handed down by the Dutch courts mark the first time a government had been held liable for the actions of its peacekeepers operating under a UN mandate. The decisions significantly broaden potential legal liability for troops and na- tions contributing to UN missions in the future.
Additionally, the decision’s emphasis on the Dutch- bats’ effective control of the safe area calls into question any presumptive immunity that may be granted to soldiers and nations engaged in peace- keeping. Some experts have even suggested an internal UN tribunal should be organized to look at serious accusations against peacekeepers. This
ILSA Quarterly » volume 23 » issue 1 » October 2014
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