Mothers of Srebrenica

The Mothers of Srebrenica is an activist and lobbying group based in the Netherlands, and represents 6,000 survivors of the Siege of Srebrenica, during the Balkan Wars of the 1990s. The Organization is best known for bringing a civil action against the United Nations for a breach of duty of care relating to the ^{[1] [2]}

Court Case

The Mothers of Sebrinicia bought proceedings in a Dutch local court regarding the Srebrenica massacre citing that a Dutch battalion under the UN oversight were responsible for safeguarding of the safe haven at Srebrenica in 2007 and that both the United nations and Netherlands breached that duty of care and they were negligent.

The Netherlands Court held that under Art 105 of the United nations Charter the UN has immunities in this instance. The district court held that they did not have jurisdiction to even hear the case. The matter was appealed to a higher court in 2012 where it was argued by the mothers of Srebrenica, that the UN having immunity denies the party the right to a free trial, which is guaranteed in the European Convention on Human Rights.

The Appellant court held the United Nations Charter has primacy over domestic laws, based on Art 103 of the UN charter, and it remains absolute even in the face of claims of violation of Jus cogens. The Court held that even Jus cogens does not over rule the absolute immunity of the UN.

The court found "Pursuant to the judgment of the International Court of Justice in Nicaragua v. United States in which the ICJ interpreted Article 103 of the UN Charter to mean that the Charter obligations of UN Member States prevail over conflicting obligations from another international treaty, whether earlier or later in time than the Charter, the Supreme Court of the Netherlands came to the conclusion that the UN enjoys absolute immunity." Therefore any right of access to courts contained in Art 6 of the European Convention on Human Rights and Art 14 in International Covenant on Civil and Political Rights did not prevail over the immunity of the UN even given the gravity of the alleged charges.^[3]

In 2014 the mothers filed a separate claim against the Dutch government, using a series of different terms, and the Dutch court found for the Mothers of Srebrenica but found the Netherlands only liable for 300 of the 10000 deaths. The legal basis that differentiates the two is that in the second trial the court looked at the issue of effective control, and found that because the command shifted at the point where the safehaven was overrun and at that point effective control shifted from the UN to the Dutch government due to the loss of command structures. The Dutch government was found to be responsible for safety of the safehaven for that short window of time.

This second case upheld the UN immunity.^[4] The precedent of this case is that participating state under a UN flag may be liable where the UN immunity is enforced.

References