By Otto Spijkers
A year ago, the Mothers of Srebrenica, 6.000 surviving relatives of those killed in the Srebrenica genocide, went to the District Court in The Hague to demand reparations for damages that resulted from the failure of both the Netherlands and the United Nations to prevent the genocide and save the lives of more than 7.000 relatives. On 18 June 2008, there will be a first hearing in this case. The issue that will be considered that day is whether the United Nations can claim immunity. In principle the United Nations is entitled to immunity. However, now that genocide is involved, which is a jus cogens violation, the Dutch court may do something unusual and deny such immunity. The argument would be that jus cogens trumps all other law, including the laws of immunity. Since the United Nations did not appear at all in the procedure, and has made it clear it will not do so in the future, we now have the strange situation that the counsel for the Netherlands is pleading immunity on UN’s behalf. And thus the Dutch District Court will have to assess the question of immunity for the United Nations based on those arguments presented to it by the Netherlands. I have already written about this Srebrenica case on 1948, our previous blog. There I also wrote about the judgment of the ICJ in the case between Serbia and Bosnia, which also concerned the Srebrenica genocide. For more information, see the website of the law firm representing the Mothers of Srebrenica.
I’d have to say I see some merit in the suggestion I mentioned in my first comment. I agree that it is artificial in practical terms, but – unless we can show that jus cogens incorporates aan aspect directed at enforcement – it seems to have logic on its side. As for the other points you mention, I suppose they can be resolved, but they are clearly far from easy, and less than attractive for a domestic court.
I would have thought, incidentally, that it is not only the prohibition of genocide (implicit in the Genocide Convention) that ranks as jus cogens, but also the obligation (stated expressly in the Convention) to prevent genocide. Well, I guess that’s more evidence, if any were needed, that jus cogens is a terribly elusive concept.
Your next problem seems to raise the issue of the relationship between the quality of International Organisations as subjects of international law, and their subdivision into organs. Here, my best guess would be that all organs (SC, SG, GA,…) engage the responsibility of the UN itself, as an aggregate body made up of its organs (not unlike a state). I seem to remember that the ILC Draft on the Reponsibility of IOs reflects as much.
The issue about the Dutch soldiers on the ground engaging the responsibility of the UN may well be the most critical of all. The issue has plagued the ECtHR in Behrami and Saramati, and the House of Lords in Al-Jedda. I tend to think the European Court has made rather a meal of it, whereas the House was at least right in the result, but the Dutch court may be unwilling to also slam the ECtHR in this way.
And this is before we even come to the issue of UN responsibility for NATO action. That would be the responsibility of one IO for acts of another IO (either acts of organs of the latter IO or acts of state organs attributed to the latter IO).
The IL case from hell…
for the court, not for us…
I am not sure. The court expects a lot of international attention, so there may be a translation. In that case I guess that translation can be found also on the law firm’s website (see my post for the link). But all this is just guessing…. I’ll keep you informed.
Proceedings will be Dutch only?
We spoke about it at lunch yesterday, at work. There are a lot of legal problems. Not only is there, as you say, a substantial amount of case law suggesting this – in my personal view somewhat artificial – divide between substance (genocide) and procedural aspects (immunity), but there are many other legal hurdles. The UN did not violate a jus cogens norm, but failed to prevent such a violation; and then there’s the question: what is the UN? It was the Security Council that came up with the ‘safe haven’ strategy, but then it was the Secretary-General who acted somewhat like a general, but he needed the support of NATO for airstrikes, and it was the peacekeepers (Dutch soldiers) who implemented the Council’s mandate on the ground. Do we want the local judge to unravel all that? I still hope the local judge will surprise us, and let herself (or himself) be convinced by the somewhat non-legal arguments that there is no other court the Mothers can turn to, and that the UN has never truly accepted responsibility and paid reparations of some kind. It seems unlikely, but let’s wait and see: the UN may just be facing an activist judge, who treats the law with some flexibility….
Thank you, Otto. This looks like a fascinating case. Do you know if the Court has been referred to the rather strong body of academic and judicial opinion according to which the jus cogens norm (a prohibition) and immunity (a bar on enforcement) do not actually collide, with the result that the superior force of jus cogens cannot bite?