Questioning the UN's immunity in the Dutch courts: unresolved issues in the Mothers of Srebrenica litigation.

• Published date: 22 December 2011
• Author: Brockman-Hawe, Benjamin E.
• Date: 22 December 2011

I. INTRODUCTION

Providing victims with a judicial forum where they can air their grievances and obtain redress for violations of their rights is regarded as the cornerstone of an international culture of accountability. Restrictions on the right of access to a court must not run afoul of international law's prohibition on the denial of justice. (1) The operation of international organizations, on the other hand, is predicated on the notion that shielding such organizations from the normal processes of foreign law, by providing for their immunity before foreign national courts, is the only way to ensure their effectiveness. (2) When an international organization tasked with promoting human rights is itself accused of human rights violations, these two international norms run afoul of one another, and any resulting incompatibility must be resolved.

The tension between the immunity and the accountability of international organizations was recently dealt with by the Dutch Court of Appeals in the case of Mothers of Srebrenica v. the Netherlands & the United Nations. (3) This case was not the first before Dutch courts in which plaintiffs have sought to hold the Netherlands responsible for the failure of Dutch troops operating under a UN mandate to prevent the 1995 attacks against Bosnian Muslims at Srebrenica, (4) but it is the first suit to claim the UN was jointly and severally liable. This Article examines the judgment of the Dutch Court of Appeals, which affirmed the decision of the lower court to dismiss the suit against the UN for lack of jurisdiction.

II. BACKGROUND

The Mothers of Srebrenica case stems from the notorious July 1995 attacks against Bosnian Muslims perpetrated by Bosnian Serb forces in the East Bosnian enclave of Srebrenica. (5) Various courts, including the International Court of Justice ("ICJ"), (6) the Court of Bosnia and Herzegovina, (7) and the International Criminal Tribunal for the former Yugoslavia ("ICTY") (8) have examined the attacks and confirmed that they amounted to genocide. The events leading up to the atrocities of July 1995 were recently summarized by Trial Chamber II of the ICTY in the case of Prosecutor v. Popovic:

 In early July, these two United Nations protected areas [Srebrenica
                 and Zepa], established as havens for civilians caught up in the
                 calamity of war, were the subject of intense military assault by
                 Bosnian Serb Forces. The United Nations protection forces in both
                 places were disabled and rendered powerless. In Srebrenica, the
                 terrified Bosnian Muslim population fled to the nearby town of
                 Potocari. There, in the face of a catastrophic humanitarian
                 situation, the women, children and the elderly were ultimately
                 loaded onto packed buses and transported away from their homes in
                 Eastern Bosnia. For a large proportion of the male population, who
                 were separated, captured or had surrendered, a cataclysmic fate
                 awaited them. Thousands of them were detained in horrific
                 conditions and subsequently summarily executed. (9)
                

In 1996, the Dutch government asked the Netherlands Institute for War Documentation ("Institute") to explain the failure of the United Nations Protection Force ("UNPROFOR"), specifically its 400-strong Dutch troop component ("Dutchbat"), to effectively deter the Srebrenica attacks. (10) In 2002, the Institute published its findings ("Report"), which blamed the Dutch Government and senior military officials for handing over Bosnian Muslim civilians to Serb forces. (11) The Report also blamed the United Nations for failing to provide proper support to Dutchbat. (12) With respect to the command relationship between the United Nations and the Dutch battalion, the Report concluded that Dutchbat was under the "operational control" of the United Nations but had acted independently in its administration of the Srebrenica Safe Zone. (13)

The events of July 1995 had a profound impact on the Dutch government and the United Nations. The publication of a report critical of the role the Dutch government played in Srebrenica resulted in the resignation of the entire Dutch Cabinet in 2002, and the question of whether the Netherlands should apologize for its role in the killings remains controversial. (14) Srebrenica also became a permanent stain on the reputation of UN. In 1999, the UN Secretary-General, Kofi Annan, acknowledged "[t]he tragedy of Srebrenica will haunt our history forever." (15) His successor, Ban Ki-Moon, echoed his predecessor's sentiment at a 2010 memorial ceremony for the Srebrenica victims, admitting that "[t]he United Nations made serious errors of judgment in Srebrenica, which weigh heavy on our collective memory and conscience." (16)

On June 4, 2007, the Mothers of Srebrenica Association, a Bosnian non-governmental organization ("NGO"), and ten individual plaintiffs commenced a civil action against the Dutch government of the Netherlands and the United Nations in the District Court of The Hague. (17) The plaintiffs sought compensation from both the Netherlands and the United Nations as co-defendants. (18) Additionally, the plaintiffs sought to compel both co-defendants to accept moral responsibility for the events at Srebrenica. (19) On July 10, 2008 the district court determined that it was not competent to hear the action brought against the United Nations on account of its immunity from suit before national courts. (20) The Court of Appeals upheld the verdict of the District Court, in the process considering whether: (a) the state could assert the immunity of the UN, (b)the immunity enjoyed by the UN was absolute or limited in scope, and (c) a conflict regarding the right of access to a court justified setting aside the UN's immunity. (21) This Article discusses these three aspects of the Court of Appeals decision, referencing the District Court decision where necessary to illustrate important points of convergence or departure.

III. THE IMMUNITY OF THE UN

A. Asserting the UN's Immunity Before Dutch Courts

The UN routinely declines to appear before national courts, instead invoking its immunity through letters sent to the Permanent Representative of the host state of the national court where jurisdiction is sought. (22) The Mothers of Srebrenica case proved to be no exception, and it was left to the Netherlands to assert the immunity of its co-defendant before the Dutch courts. (23) Because the plaintiffs raised objections relating to the capacity of the Netherlands to petition on behalf of its co-defendant, (24) the Dutch courts were faced with the procedural question of whether the Netherlands had an "interest in the outcome of the proceedings" sufficient to justify its appearance on behalf of the UN before the Dutch courts. (25) Consistent with the District Court decision, (26) the Court of Appeals held that the State had

 a reasonable interest in a Netherlands court not delivering any
                 judgments which conflict with the immunity granted to the UN
                 because in that case the State, to whom such ruling should be
                 imputed under international law, would violate its obligations
                 arising from [Article 105 of the Charter and Article II § 2
                 of the Convention.] (27)
                

Thus, both courts held the Netherlands' assertion of immunity for the UN was procedurally proper.

Domestic courts are placed in a tough position when national governments assume conflicting international responsibilities. While principles of justice forbid judges from abstaining on the grounds that the legislative branches have not made it clear which obligations they have prioritized, separation-of-powers principles prohibit courts from taking a position on matters affecting the foreign relations of the state. (28) These problems are exacerbated when one of the international obligations in question is to secure the fundamental rights of a petitioner. Keeping in mind that in Mothers of Srebrenica the Dutch courts potentially faced the difficult choice of either forcing the Netherlands to violate its UN Charter responsibilities or setting the stage for a claim before the European Convention on Human Rights and Fundamental Freedoms ("ECHR") that the Netherlands violated its international law obligation to provide access to a court, it is not a surprise that both the District Court and the Court of Appeals permitted the Netherlands to intervene and explain its legal and political priorities. Importantly, these Dutch court decisions allowed the Netherlands to discharge its duty under the majority decision by the ICJ in Cumaraswamy "to inform its courts of the position taken by the Secretary-General" concerning the UN's immunity and ensure that the courts consider the issue of immunity as a threshold matter in limine litis. (29) There is no indication, however, that the Dutch courts specifically considered Cumaraswamy.

B. The Scope of the Immunity of the UN

The UN's procedural immunity from suit before national courts is provided for, in general terms, by Article 105(1) of the UN Charter, which states that "[t]he Organization shall enjoy in the territory of each of its Members such privileges and immunities as are necessary for the fulfillment of its purposes." (30) The Privileges and Immunities Convention further defines these immunities in Article II, Section 2, which states that "[t]he United Nations ... shall enjoy immunity from every form of legal process except insofar as in any particular case it has expressly waived its immunity." (31) The apparent functionally-limited grant of immunity provided for in the UN Charter has historically been regarded as embodying a standard of absolute immunity, insofar as "international organizations can only act within the scope of their functional personality [and] there is no room left for non-functional acts for which immunity would be denied." (32) In recent years, however, the scholarly community has come to regard the functional approach as overbroad, and now generally encourages courts to adopt a "strict-functionality" test that...