'Pioneering role'

DW: Dutch UN peacekeepers have been found liable for deportation of more than 300 Muslim men from the Dutchbat compound [who were then killed by Bosnian Serb troops in the Srebrenica massacre]. The court said on Wednesday (16.07.2014) the men would probably still be alive, had they been allowed to stay in the compound. Was this ruling expected?

Andreas von Arnauld: Well, yes, and no. Since the ruling is in the line with earlier judgments by Dutch courts concerning the Srebrenica massacre, especially in the Mustafic and Nuhanovic cases, the Court of Appeal and the Dutch Supreme Court had affirmed responsibility in 2011 and 2013, respectively, of Dutchbat and the Dutch state.

But no - that's the other answer - it didn't come expected since there is a general reluctance of courts to assume liability in human rights cases concerning their own military personal abroad. So the Dutch courts played and still play a pioneering role.

The court said that the Netherlands are not liable on all counts put forward by the "Mothers of Srebrenica" - 8,000 men and boys were massacred at Srebrenica in 1995. For instance, the Dutch state was not held responsible for failing to protect refugees who fled to the woods instead of the compound. Why did the court distinguish between protecting refugees in and outside the compound?

It's difficult to strike a fair balance here. Because if you look back at the fact of that time, Dutchbat was actually faced with the situation in which it was confronted by a militia - the militia of the Republika Srpska - that already controlled the whole area. And there was no support from international forces arriving, so de facto Dutchbat had no possibility on all accounts to protect those fleeing to the woods.

According to the court, Dutchbat was also well in reason to decide not to admit all 25,000 people seeking shelter at the compound, leaving most of them to fend for themselves - even though the Dutch troops were in what the United Nations had called a "safe zone." Why is the state not being held accountable for failing to protect civilians if they failed to admit them to the compound?

That certainly is the much harder question, because you might think about letting in thousands more even if the living conditions there could then deteriorate massively. Much depends here on the facts which have been established by the court.

I think the central problem is that those safe zones, or safe areas as they were called then, turned out to be just some kind of shallow promise without the military capacity to actually protect the civilians there. These were only light-armed battalions, which were sent to protect the area of Srebrenica. So primarily it was the United Nations and UNPROFOR - Protection Force of the United Nations - that has to bear the blame for tragic mistakes in planning the whole operation.

But a court case earlier ruled that the UN is not responsible?

The UN is not responsible, and that's one of the big problems. We have some kind of legal accountability black holes surrounding those UN peace-keeping missions. It concerns first of all difficult and entangled questions on attribution of conduct - who decided what, who is responsible for what because of attribution, or can we imagine some kind of responsibility without conduct that is attributed to a single state or to the United Nations.

And then we have, of course, UN immunity from national domestic courts, and we have no legal or institutional possibility to challenge the UN or to hold them liable on UN level. Every attempt to establish structures for liability at the UN level have failed politically.

Will this ruling set a precedent for similar cases where troops have failed to protect civilians?

Well, hopefully so, but this actually depends on willingness of national courts. And here we have to bear in mind that of course the massacre of Srebrenica was one of the vilest incidents we had in Europe after the end of World War II. And it's left its marks and scars on the Dutch public, and also its stand towards international engagement of its troops, so the Dutch are perhaps are already a little more mature than others.

But legally, it is a good sign that the Dutch courts showed some flexibility on the attribution issue - they attributed conduct to the United Nations and also to Dutchbat. And opened a window, actually, for circumventing this accountability problem. This might be an attempt to establish some kind of shared responsibility.

Here we still have the biggest problem. I think that the United Nations must establish some kind of institutional structure or boards which deal with those claims expeditiously and with enough money to counsel UN liability. This hasn't happened yet.

What does this ruling mean for the victims' relatives?

Probably after so many years of trying to get at least some kind of financial compensation, I think it must be hard to understand the drawing of lines here. Because if you were allowed into the compound, then the Dutch state is liable. If you had to stay outside but wanted to get in - that is perhaps the hardest line - then in this case the Dutch state is not liable. Legally, this can be in some way construed, but this is probably very hard to communicate to the victims' relatives.

And this again shows that we need some kind of shared responsibility scheme which includes the United Nations that in the end doesn't really [look at] where you are - inside or outside the compound, if you fell victim to human rights violations that in some way the international community and troop-contributing states are responsible for.

Andreas von Arnauld is professor of International Law and Co-Director of the Walther-Schücking Institute for International Law at Kiel University.