T here is no democracy in the entire wide world in which the army enjoys such immunity from accountability for any wrongdoing by its men, and its chief such freedom to offer political comments. General B.C. Rawat freely shoots off his mouth on matters political, putting into shade the record set by one of his predecessors, Gen. (happily retd.) J.J. Singh. He famously wept before TV cameras shortly after his appointment as Army Chief was announced.
We draw largely on British jurisprudence; none too well, either. We neglect French and German jurisprudence. A judgment delivered on July 19 by the Supreme Court of the Netherlands, Civil Law Division, is of direct relevance to us in the light of our army’s record in north-eastern India, Punjab and Kashmir. A Major of Rashtriya Rifles, alleged to be complicit in the murder of a senior advocate of the Jammu & Kashmir High Court, was allowed to escape. He surfaced in the United States only because of our domestic row. The perpetrators of the Kunan Poshpora rapes and the Pathribal murders have gone scot-free.
The judgment was rendered by vice president of the Court of Amsterdam, C.A. Streefkerk as chairman and justices M.V. Polak, C.E. du Perron, M.J. Kroeze and C.H. Steburgh, and was pronounced in open court by Streefkerk.
The appellant was the state of Netherlands, in the Ministries of General Affairs, Defence and Foreign Affairs. Ten respondents were from Bosnia-Herzegovina. The 11th was Stichting Mothers of Srebrenica, a foundation set up under Dutch law.
The case concerned events that took place in 1995 with regard to the fall of the city of Srebrenica in 1995. The Supreme Court had already delivered a judgment in two previous proceedings.
In 2012, the Supreme Court held proceedings that were initiated by the foundation and [respondents] against the United Nations (U.N.) that the U.N. had immunity from jurisdiction.
In 2013, the Supreme Court held that the state acted wrongfully by sending [A] and family members of [B] away from the compound of the Dutch Airmobile Brigade (Dutchbat) on July 13, 1995, where they were staying at that time. The conduct was held to be wrongful because of the knowledge Dutchbat had about the risks they would be exposed to.
In the present case, the foundation and [respondents] held the state liable for the acts and omissions of Dutchbat in the period preceding and following the fall of the city of Srebrenica. They claimed that Dutchbat did too little to stop the advance of the Bosnian Serbs and to protect the population of Bosnian Muslims. It also acted wrongfully by cooperating with the evacuation of the refugees who had fled to the mini safe area of Dutchbat. During that evacuation, the male refugees were separated from the other refugees by the Bosnian Serbs and were deported, after which they were murdered.
The District Court held that by virtue of a wrongful act the state was liable for the damage suffered by the persons represented by the foundation as a result of Dutchbat’s cooperation in the deportation of the male refugees, who were deported and then killed by the Bosnian Serbs in the afternoon of July 13, 1995. The District Court denied all other claims of the foundation et al .
The Court of Appeal held that the state acted wrongfully in two respects: (i) by facilitating the separation of the male refugees by the Bosnian Serbs by allowing the refugees to go to the buses in groups and through a sluice; and (ii) by not giving the male refugees who were inside the compound on July 13, 1995, the choice of staying in the compound and thus denying them the 30 per cent chance of not being exposed to the inhumane treatment and executions by the Bosnian Serbs. The Court of Appeal ordered the state to compensate the damage as a result of the acts.
Yugoslavian conflict
Until 1991, the Socialist Federal Republic of Yugoslavia consisted of six (constituent) republics: Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. These republics were inhabited by different ethnic and religious groups (Croats, Serbs, Muslims, and others) who formed a majority or a minority in the various republics. Throughout the ages, there was both peaceful coexistence and conflict. Conflict always moved along the said ethnic and religious lines.
In 1991, the constituent republics Slovenia and Croatia declared themselves independent of the Socialist Federal Republic of Yugoslavia. Subsequently, fighting erupted in both republics.
The warring factions in Croatia reached an armistice agreement on January 2, 1992, and accepted a peace plan which provided for deploying a peacekeeping force under the command of the United Nations. The U.N. Security Council, by Resolution 743 of February 21, 1992, formed the United Nations Protection Force (UNPROFOR), with its headquarters in Sarajevo.
From April 1 1995, UNPROFOR was renamed U.N. Peace Forces (UNPF). On March 3, 1992, the (constituent) republic of Bosnia and Herzegovina also declared itself independent of the Socialist Federal Republic of Yugoslavia after a referendum. On March 27, 1992, the Bosnian Serbs, in turn, declared themselves independent of the new state of Bosnia and Herzegovina and declared their own independent state. Subsequently, fighting erupted between the army of Bosnia and Herzegovina, dominated by Bosnian Muslims, and the Bosnian Serb army, or Vojska Republijke Srpske (hereinafter VRS).
Fall of Srebrenica
By Resolution 758 of June 8, 1992, the Security Council extended the UNPROFOR mandate to include Bosnia and Herzegovina. Srebrenica is a city situated in eastern Bosnia and Herzegovina. From 1992, eastern Bosnia and Herzegovina was the scene of fighting, first between Muslim fighters and Serbian militias, later between their armies. As a result, Muslim enclaves developed. The enclave “Srebrenica” was one of them. It was controlled by the Muslim fighters and later by their army, and they controlled an area of almost 900 square kilometres around the city of Srebrenica in January 1993. After fights with the Bosnian Serbs, this area was reduced to approximately 150 sq. km. around the city in March 1993. In early 1993, Srebrenica was surrounded and became isolated and the VRS stopped relief convoys sent by the United Nations High Commissioner for Refugees (UNHCR) and fired at helicopters. A humanitarian crisis developed, with lack of water, food, electricity and medicine.
Under the circumstances, the then Commander of UNPROFOR, the French General Phillipe Morillon, accompanied by officials from Medecins Sans Frontieres, visited the besieged and overpopulated Srebrenica on March 10, 1993. On March 14, 1993, he addressed a crowd of Bosnian Muslims, promising them that they were under U.N. protection and that he would not forsake them. The U.N. Security Council called upon member states to contribute to the peace-keeping forces. The Netherlands sent its Dutchbat, which served as a contingent of the UNPROFOR and under its command. On May 25 and 26, the North Atlantic Treaty organisation (NATO) carried out air strikes on the Bosnian Serbs’ headquarters. On July 11, 1995, Srebrenica fell to the Serbs.
Earlier that afternoon, around 2:30 p.m., a stream of Bosnian Muslim refugees had started to move from the city of Srebrenica to the U.N. compound. In the course of the afternoon of July 11, 1995, refugees were admitted to the compound through a hole in the fence until the vehicle halls were full. At 4:30 p.m. the gates to one of the factory sites near the compound were opened. At that point, the hole in the fence had already been closed.
A mini safe area was set up. In the early afternoon of July 12, 1995, on the orders of the Bosnian Serbs, buses and trucks arrived at the mini safe area. Around 2 p.m., the evacuation of the refugees from the mini safe area started. A massive run on the buses ensued, and there was a threat of refugees trampling on one another. The first buses were overcrowded.
In consultation with the Bosnian Serbs, Dutchbat then supervised the movement to the buses by creating a kind of corridor of vehicles and a human cordon of Dutchbat soldiers. The refugees, called out in numbers by the Dutchbat soldiers, passed through this “corridor” to the buses. The buses then transported the refugees to Tisca, from where, after marching for kilometres to Kladanj and a bus ride arranged by the U.N., they reached a provisional shelter at Tuzia airport. The Bosnian Serbs took male refugees from the rows of refugees on their way to the buses. The Bosnian Serbs started to transport these male refugees in separate buses. In the evening of July 12, 1995, the evacuation of refugees stopped. By that time, 4,000 to 5,000 refugees had been evacuated.
Dutchbat’s inaction
Dutchbat soldiers observed war crimes committed by Bosnian Serbs between July 10 and 13, 1995. Dutchbat did not report the war crimes observed by its soldiers within the U.N. chain of command immediately. Dutchbat did not report any other war crimes until after the evacuation. In the night of July 12, 1995, Bosnian Serbs raped female refugees.
On July 13, 1995, the evacuation was resumed. When the buses appeared in the morning, Dutchbat started to escort the refugees, including the men, to the buses. A number of these buses left before the Bosnian Serbs arrived over an hour later. En route, the Bosnian Serbs stopped part of these buses and removed the men from them.
By the end of the afternoon of July 13, 1995, all the refugees in the part of the mini safe area situated outside the compound had been moved out, and a start was made with moving out the refugees staying within the compound. In the evening of July 13, 1995, according to the International Criminal Tribunal for the former Yugoslavia (ICTY), at 8 p.m., the evacuation of these refugees was finished.
After the fall of Srebrenica, genocide was committed against Bosnian Muslims. Buses with male refugees went from Potocari to Bratunac. The men who had not gone to the mini safe area but had fled to the woods and had been taken captive were also taken to Bratunac. In total, the Bosnian Serbs killed approximately 7,000 male Bosnian Muslims from the safe area in a number of different locations in mass executions , which started on July 13, 1995, in the area north of the city of Srebrenica and subsequently took place from July 14 through 17, 1995, in several places north of Bratunac. Moreover, the Bosnian Serbs killed between 100 and 400 Bosnian Muslim men in Potocari on July 12 and 13, 1995. The Dutch abandoned the compound on July 21, 1995.
The respondents were the mothers, wives and/or daughters of the killed Bosnian Muslims who had fled into the woods or who had been staying inside the mini safe area outside the compound and were evacuated on July 12 and 13, 1995.
The foundation based its claim on the argument that Dutchbat did too little to stop the advance of the Bosnian Serbs and to protect the population of the safe area around Srebrenica and that during the evacuation of the refugees who were staying at the mini safe area, Dutchbat cooperated in the separation of the male refugees from the other refugees and cooperated in the evacuation of the male refugees who were staying in the compound.
The District Court tendered a judicial declaration entailing that by virtue of a wrongful act, the state was liable for the damage suffered by the people represented by the foundation as a result of Dutchbat’s cooperation in the deportation of the male refugees who were subsequently killed by the Bosnian Serbs in the afternoon of July 13, 1995. The District Court denied all other claims of the foundation et al .
The Court of Appeal set aside the judgment of the District Court and, in a new judgment, rendered a judicial declaration entailing that the state acted wrongfully (i) by facilitating the separation of the male refugees by the Bosnian Serbs on July 13, 1995, and by allowing the refugees to go to the buses in groups and through “a sluice”; and (ii) by not giving the male refugees who were in the compound on July 13, 1995, the choice of staying in the compound, thus denying them a 30 per cent chance of not being subjected to inhumane treatment and execution by the Bosnian Serbs. The Court of Appeal ordered the state to compensate the damage that was caused by the acts mentioned at (ii), to be determined by the court in follow-up proceedings.
The Court of Appeal held that irrespective of whether and to what extent the acts that took place under the U.N. flag must be attributed to the state, the rules of international laws apply, particularly the rules laid down in the Draft Articles on the Responsibility of International Organisations (DARIO) and the Draft Articles on Responsibility of States for Internationally Wrongful Acts (“DARS”) that were drawn up by the International Law Commission (ILC). These rules apply to all the states, India included.
The Netherlands did not control its contingents. The U.N. command did. After the Bosnian Serb troops arrived at the mini safe area on July 13, 1995, the evacuation of the refugees continued. In this, the uncontrolled flow of refugees into the buses was obstructed by four armoured vehicles positioned there, ribbons and a human chain of Dutchbat members standing hand-in-hand. Dutchbat assembled groups of refugees on an adjacent lot, who were subsequently led through the sluice one group at a time. While the refugees were walking to the buses in this manner, the male refugees were identified by the Bosnian Serb troops and separated from the women, children and the elderly before they arrived at the buses. In practice, this conduct by Dutchbat made it easier for the Bosnian Serbs to separate the male refugees.
As of July 13, 1995, Dutchbat should have stopped the cooperation in the evacuation it had provided until then, because as a result of the separation, the male refugees were being exposed to the real risk of an infringement of the fundamental rights, and Dutchbat knew, or at least ought to have known, this on July 13, 1995.
Conduct of the state
The Court of Appeal also considered the highly complicated circumstances on site, known from the case file and put forward by the state, under which Dutchbat was forced to operate and under which it arrived at the choice to continue to cooperate in the evacuation by calling groups forward and using the sluice. The fact that stopping this cooperation would have led to chaos in which the Bosnian Serbs would have treated the refugees harshly cannot justify cooperating in the separation of male refugees, resulting in their being subjected to the real risk of torture or inhuman or humiliating treatment or being executed. Dutchbat, thus, acted wrongfully by continuing to cooperate in the evacuation on July 13, 1995, by forming groups and using a sluice.
The wrongful conduct of Dutchbat facilitated serious violation of fundamental rights. That justified a judicial declaration entailing wrongful conduct, despite the fact that causality had not been established.
The Supreme Court considered these findings of the Appeal Court and proceeded to give its own findings on law and fact. In order to determine the conditions under which conduct may be attributed to a state or an international organisation as developed in international law, as the Court of Appeal undisputedly had done, the court drew on two sets of articles drawn up and adopted by the U.N.’s International Law Commission (ILC): the Draft Articles on Responsibility of States for International Wrongful Acts from 2001 and the Draft Articles on the Responsibility of International Organisations from 2011.
To answer the question of whether conduct can be attributed to a state, the provisions in the DARS, Part One, “The internationally wrongful act of a state”, Chapter II, “Attribution of conduct to a state” are relevant, of which Articles 4 and 8 read as follows:
“Article 4: Conduct of organs of a state
1. The conduct of any state organ shall be considered an act of that state under international law, whether the organ exercises legislative, executive, judicial or any other functions, whatever position it holds in the organisation of the state, and whatever its character as an organ of the central government or of a territorial unit of the state.
Article 8: Con duct directed or controlled by a state
“The conduct of a person or group of persons shall be considered an act of a state under international law if the person or group of persons is in fact acting on the instructions of, or under the direction or control of, that state in carrying out the conduct.”
It follows from Articles 4 and 8 of DARS that the conduct of Dutchbat may be attributed to the state if it is deemed to be an organ of the state or if Dutchbat was, in fact, acting on the instructions, or under the direction or control of the state.
On non-state actors as in Nicaragua (the Contras) “it would in principle have to be proved that the state (the U.S.) had effective control of the military or paramilitary operations in the course of which the alleged violations were committed. Thus while the United States was held responsible for its own support for the Contras, only in certain individual instances were the acts of the Contras themselves held attributable to it, based upon actual participation of and directions given by that state. The court confirmed that “a general situation of dependence and support would be insufficient to justify attribution of the conduct to the state”. The test is effective “overall control” of the operations.
The Supreme Court held that a state had a positive obligation to act to protect the right to life of civilians who were under its jurisdiction. This positive obligation must be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources”.
An assessment must be made whether “the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk”. All circumstances of the case must be taken into account.
A state has an obligation to take measures to protect civilians under its jurisdiction from torture or inhumane or humiliating treatment or punishments. A state may be held liable “where the authorities fail to take reasonable steps to avoid a risk of ill-treatment about which they knew or ought to have known”. It is definite that Dutchbat’s command knew or reasonably ought to have known at the time of the evacuations on July 13, 1995, that there was a real risk that the Bosnian Serbs would violate the rights to life and to physical integrity of the male refugees. On the facts, the Supreme Court held that the Dutchbat had no option but to comply with the Serbs lest it faced reprisals.
The Supreme Court concluded: “All in all, it must be ruled that the chance that the male refugees, had they been offered the choice of remaining in the compound, could have escaped the Bosnian Serbs, was indeed small, but not negligible. In view of all of the circumstances, the Supreme Court estimates that chance at 10 per cent.”
The Supreme Court concluded finally: “In so far as this case concerns the acts of Dutchbat until 23:00 on July 11, 1995, those acts were performed under the command and control of the U.N., without the state exercising effecting control in that regard. Those acts cannot be attributed to the state for that reason. The state cannot be held liable for the fact that Dutchbat was unable to prevent Srebrenica from being captured by the Bosnian Serbs.
“In the period starting from 23:00 on July 11, 1995, after Srebrenica had been conquered and after it was decided to evacuate the Bosnian Muslims who had fled to the mini safe area, the state did have effective control of Dutchbat’s conduct. That conduct can be attributed to the state for that reason.
“The evacuation—which, in hindsight, turned into deportation of the male refugees by the Bosnian Serbs—commenced in the afternoon of Wednesday, July 12, 1995, with Dutchbat’s cooperation. From the evening of July 12, 1995, Dutchbat became aware that the male refugees, after being separated from the other refugees by the Bosnian Serbs, ran a real risk of violation of their rights to physical integrity and life by the Bosnian Serbs. The continued cooperation in the evacuation of refugees on Thursday, July 13, 1995, was not wrongful, however. Although Dutchbat knew of a realistic danger to the male refugees, Dutchbat discontinuing its cooperation could not have changed this, as the Bosnian Serbs would continue the evacuation. By continuing to cooperate in the evacuation, in any event Dutchbat could prevent women, children and the elderly from being trampled. This is why it was not wrongful for Dutchbat to continue its cooperation in the evacuation.
“However, the latter is different in respect of the evacuation at the end of the afternoon of July 13, 1995, of the refugees who were inside the compound. Dutchbat failed to offer the male refugees in the compound the choice of staying behind there, even though that was possible. As a result, Dutchbat withheld from these male refugees the chance of escaping from the Bosnian Serbs. That was wrongful. The chance that the male refugees, had they been offered this choice, would have escaped the Bosnian Serbs was small, but not negligible. That chance is estimated at 10 per cent. This is why the liability of the State is limited to 10 per cent of the damage suffered by the surviving relatives of these male refugees.”
It will be noticed that the legal findings and reasoning apply to all states under international law which overrides their protective domestic laws riddled with protection for the state and its organ, the armed forces.
India’s laws provide a licence to the armed forces. They must be changed. It is only fair to record a deep debt to my friend Ravi Nair, Executive Director, South Asian Documentation Centre, New Delhi, for providing me, at my request, a copy of the judgment of the Supreme Court of the Netherlands. His standards of research remain unequalled in our country. They are world class.
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