The Legacy of Srebrenica: Potential Consequences of Reducing Liability for Troop Contributing Countries in Modern UN Peacekeeping Operations

Abstract

In 2014 the District Court of The Hague returned its decision in a case concerning peacekeeper (Dutchbat) wrongdoing during the 1995 massacre at Srebrenica, Bosnia-Herzegovina. The district court dismissed the UN as party to the suit, basing this decision on the organization’s statutory immunity from prosecution. As a basis for holding the Netherlands liable for Dutchbat’s actions, the district court utilized the effective control standard. This standard triggered liability for conduct undertaken either under direct order from Dutch officials, or in violation of the mission mandate. The district court strictly interpreted effective control, concluding the Netherlands was liable for conduct only insofar as it pertained to Dutchbat personnel who actively separated male Muslim refugees, who were later executed by the Bosnian Serbian Army. The decision reflected a commitment to limiting Member States’ liability so as to sustain enthusiastic troop contribution to peacekeeping. This policy could have negative repercussions as peacekeepers adopt increasingly complex responsibilities, especially in areas afflicted by terrorism. These missions frequently involve asymmetrical warfare, and some have become the most dangerous on record. Zealously encouraging Member States to deploy troops to areas under constant threat of unpredictable terrorist acts strongly calls into question the prudence of this policy.