State responsibility remains a contested issue, being lodged, as it is, in ideas of comity and international law. The Dutch Supreme Court further elaborated on that idea in finding that the Netherlands was liable for the deaths of over 300 Bosniawith n Muslim men and boys at Srebrenica in Bosnia-Hercegovina in July 1995.
They had been part of a broader group of 5000 refugees, including women and children, who had been sheltering with Dutch UN peacekeepers known as Dutchbat. The action had been launched by the relatives of the victims under the umbrella grouping 'Mothers of Srebrenica'.
The Dutch-administered compound of Potocari had offered promise of haphazard security. Bosniaks were attempting to flee to it for safety. Reassurances were made that they would be protected under the broader umbrella of UN safety and international law.
The Bosnian Serb forces, under the command of Ratko Mladic, were on the offensive after three years of exhausting conflict. The racial and ethnic lines of Bosnia were being drawn up by means of military expulsion and atrocities. Their desire to acknowledge the Dutch protective presence was qualified at best.
The beleaguered Dutch peacekeepers, rattled and poorly armed, had their positions in the enclave shelled, though this took place with intensity after Dutch F-16 fighters initiated strikes at the request of Dutchbat. Mladic's forces did not take kindly to the move, threatening the slaughter of Dutch hostages and demanding the surrender of Bosniak weapons.
With the first killings of unarmed Muslims taking place on 13 July, peacekeepers exchanged 5000 Muslims in the enclave for 14 Dutch peacekeepers. A historical arrangement had been writ in blood.
The judges argued that Dutchbat should have 'taken into account the possibility' that the men in their care would have faced the threat of genocide. Surely, argued the plaintiffs, the Dutch forces should have been aware that handing over Bosniak men and boys to the Serb forces would have resulted in their deaths.
The argument there is crucial — Dutchbat became an accessory to genocide.
In the assessment of the court, 'It can be said with sufficient certainty that, had Dutchbat allowed them to stay at the compound, these men would have remained alive. By cooperating in the deportation of these men, Dutchbat acted unlawfully.'
The verdict does have one glaring weakness. It distinguishes victims. It cleaves them by means of legal distinction. In the words of the articulate president of Mothers of Srebrenica, Munira Subasic, 'The court definitely