DENIAL OF JUSTICE: The case of Hasan Nuhanović.

In June I posted a press release about the law suit against the dutch state by a former translator, Hasan Nuhanović, whose family was handed to the serbs by the UN DutchBat.

The outcome of the case of Hasan Nuhanović against the dutch state was known today:

Concluding a six-year case, the Hague District Court said on Wednesday that the Dutch government could not be deemed responsible as its peacekeepers in Bosnia had been operating under UN command.

“The state cannot be held responsible for any breach of contract or wrongful act committed by Dutchbat [the Dutch military],” the ruling said.

“Neither is the state liable for wrongful action taken by those in charge of the armed forces or members of the national government.”

Two months ago, a similar case against the UN in a dutch court was rejected, due to the fact that the UN has the privilege of immunity:

A Dutch court has ruled that it is unable to hear a case brought against the UN by relatives of victims of the 1995 Srebrenica massacre in Bosnia.

The court ruled that UN immunity, enshrined in its charter, meant it could not be prosecuted by any state.

But it said a civil case against the Dutch state, over its troops’ failure to protect civilians, could proceed.

The status of immunity, which the text from the BBC incorrectly says to be enshrined in its charter, is a consequence of the application of the doctrine of implicit competences to international organizations. This doctrine states that an International Organization must be able to use not only the powers explicitly  predicted in their constitutive treaties, but also the necessary powers to be able to fulfill the goals to which it was created.

This was recognized by the International Court of Justice in 1949, in the case called “Reparation for Injuries Suffered in the Service of the United Nations“, after the assassination of the UN mediator in Palestine, Folke Bernardotte. The ICJ recognized that the UN has international juridical personality, and that its agents benifict from priviledges and immunities paralel to those that diplomats and other state officials have.

These privileges and immunities were granted to make sure that the UN was granted with a level of autonomy that allowed it to fulfil its goals, which are, above all, the goal of preserving peace and security.

It was supposedly to fulfil the goal of preserving peace and security that the ‘safe areas’ were created.

we all know how this ended…

But still, despite having totally failed in fulfilling the goals that legitimize the existence of the status of immunity,it is those legal mechanisms that are invoked to deny justice to the victims.

We are here upon a scandalous case of the spirit of justice being distorted. The victims cannot ask the UN for responsibilities, because the UN has immunity, but the dutch state cannot be  considered responsible because its military were acting under the UN.
The UN, which failed to protect the victims, is successful in protecting itself and its agents from those which it failed to protect, while not only the dutch government, but also the dutch judiciary system wash their own hands, dismissing their own responsibilities, not only towards the victims, but also towards the idea of justice itself.

All of it in the name of international peace and security…

…tasteless wall paintings, it seems that was the true mission of the dutch bat… thirteen years latter, the drawings are still there, and not the drawings. behind this wall is the room depicted on the photo above.

10 Comments

Filed under Bosnia, International Law, Justice, Srebrenica

10 responses to “DENIAL OF JUSTICE: The case of Hasan Nuhanović.

  1. Owen

    Sarah, as I understand it the intention is for both sets of cases to go to appeal, if necessary up to the European Court of Human Rights.

    You’re absolutely right that this is a scandalous case of the spirit of justice being distorted.

    The privilege of immunity is sought and deserved because it provides a party involving themself in a situation of vulnerability with protection against becoming the target of ill-intentioned attack, not in order to allow them to evade responsibility for incompetence and dereliction of duty.

    Today is a day of shame for the Netherlands.

  2. Sarah,

    Apart from the obvious (moral) injustice of the juggling of responsibilities between the UN and the Dutch State as part of a strategy to deny the responsibility of all involved parties I think you might be a bit too idealistic about the UN and the ICJ. The UN was designed as a tool for the intervention of the Great Powers (also known as the security council) when things got a bit ugly – much like its predecessor the deceased League of Nations only slightly more effective. Every organ in the UN obeys the simple rule that in the end everything comes down to those countries with a permanent seat on the Council, even the rulings of the ICJ. Any decision taken by this court can be overturned by a simple appeal to the Security Council by any state that perceives an “injustice”. In the end it all comes down to realpolitik and the very structure of the UN conspires to make it so.

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  4. sarahfranco

    yes, there are many obstacles, because an actor who has power tends to have difficulty in accepting limitations to its power,

    but still the International Criminal Court was created, despite the fierce opposition of the US; the European Court for Human Rights is there and has several times condemned european states for denial of justice; not to mention the special ad-hoc tribunals that were created, despite all their flaws.

    and then we have also the case of Pinochet, the case that I mention in another post about Argentina, etc.

    global justice is taking its first steps, but it’s there, and it is cases such as this one that push it forward.

    no matter what the adepts of realpolitik think of it, they are not the only ones determining the rules of the game anymore.

  5. Owen

    Sarah you’re right to refer to Pinochet. The UK Law Lords’ decision made the point that a head of state should not be entitled to claim immunity for actions that were not legitimate for a head of state to undertake. The idea that it is legitimate to hand over people you have taken into your protection and then hand them over to their almost certain death does not hold water. We shall see what happens as the case proceeds through the appeals process.

    In the meanwhile I suggest your visitors get hold of the address / e-mail of their local Dutch embassy or consulate and write to express dismay/disgust at the way the Dutch government continues to disclaim any responsibility.

    (UK had its own day of shame yesterday – refusing to accept responsibility for Iraqi interpreters facing death threats if they hadn’t been employed for more than a year).

  6. Thanks for those thoughtful remarks, Sarah. Today is not a good day for justice.

    Check out further comments at –

    Más vergüenza y menos justicia
    http://elbarzal.blogspot.com/2008/09/ms-vergenza-y-menos-justicia-holanda.html

    Shame on you
    http://www.balkaninsight.com/en/main/blogs/13051/

  7. Munira Subasic, woman who lost 22 members of her family during the Srebrenica Genocide, said: “One could not have expected a different verdict, because we are dealing with the state, which doesn’t want to accept its responsibility.”

    I think she summed it up well and I couldn’t have said it better.

  8. sarahfranco

    Daniel, I think that, even though the expectation was that low, it was still worthy going to justice, because at least that became another element to make clear that this is an issue the Netherlands are ‘uncomfortable’ with.

    Initiatives like this prevent the dutch state from pretending that this never happened.

    then, because there is this pressure, the dutch government is the one who most pressures the EU to pressure Serbia to hand the ICTY indictees.

    otherwise, the current regime in Serbia would have been much more successful with its strategy of just pretending that it has nothing to to with the genocide in Bosnia, or the oppression of the albanians in Kosova.

    now, when Serbia decided it is on its interest to hand karadzic, and then offers him juridical support, it becomes impossible to deny that there is an involvement.

    the EU countries only pressure Serbia on this issue because of their public opinion, not because their governments care a bit about the victims. so, every opportunity to keep the pressure is worth taking.

  9. sarahfranco

    Andras, thanks you for the links, the spanish blog is very good and the comments on balkan insight are revealing, although not surprising.

    http://www.helsinki.org.yu/hcharter_t18a04.html

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