Is the United Nations responsible for the mass murders that took place in Srebrenica and Rwanda? Or are the national UN peacekeepers who were deployed there accountable? Dutch lawyer Liesbeth Zegveld, involved in the Srebrenica trial, and her Belgian colleague Luc Walleyn, involved in the Rwanda trial, compare notes.

Dutch UN peacekeepers have been accused of failing to prevent the 1995 Srebrencia massacre of over 8,000 Muslim civilians by Serbian soldiers led by General Ratko Mladic. Belgian UN peacekeepers are being held responsible for the deaths of thousands of Rwandan civilians who had sought shelter in a school the soldiers subsequently abandoned. Both trials revolve around the question of whether the soldiers should and could have acted or whether it was the United Nations that was responsible.

In July 2011, a Dutch court in The Hague ruled that the Dutch state was responsible in two separate cases, one relating to UN electrician Rizo Mustafic and the other to the relatives of UN interpreter Hasan Nuhanovic. Mr Mustafic and Mr Nuhanovic’s relatives were killed by Serbian soldiers in 1995 after the Dutch UN peacekeepers fled the safe haven leaving behind the Bosnians they were supposed to protect. The court concluded that the state had had “effective authority”, meaning that the decision to leave the enclave and the decision of who should be evacuated had been taken by Dutch personnel.

Threat of genocide
When faced with the threat of genocide, the Belgian UN peacekeepers in Rwanda also abandoned the civilians they were supposed to protect. The Belgian soldiers pulled out of a school in Kigali where Rwandan civilians had sought shelter. “The Belgian troops did not ignore any explicit UN order but they failed to honour their UN mandate,” Luc Walleyn says. “That mandate included the protection of the civilian population. But when the troops faced the threat of genocide, it was Belgium that decided to withdraw them towards the airport.”

But will any individual soldiers be prosecuted? Both lawyers are convinced the soldiers are accountable. “Of course, in a criminal trial the burden of proof his much higher than in a civilian one,” Zegveld says, “but the court has clearly stated that the responsible military were in a position to foresee the consequences.” “If peacekeepers commit crimes, it should be possible to hold someone responsible,” Walleyn adds.

Failing to act
But isn’t an active crime, such as rape, very different from failing to act? “If one consciously decides to surrender three thousand people to a group of murderers, I consider that at least as horrible as rape,” Walleyn declares. “A soldier bears responsibility for the civilian population .”

In both countries the judiciary is still considering how to proceed. Earlier this week, the Dutch Public Prosecutor again postponed a decision whether to go ahead and press charges, much to Zegveld’s disappointment. “In Belgium the judge initially said: that is simply your responsibility—not at all complicated.” In Belgium, an appeal has yet to be heard after a judge ruled in December 2010 that the soldiers could be held responsible for the death of the Rwandan civilians.

Uncharted terrain
The two lawyers followed each other closely. “For the Rwanda case there was really no precedent,” Zegveld explains. “There was only one ruling, dating from the 1960s, about the United Nations in Congo. But the ruling issued by the Belgian judge meant that Holland’s judiciary became less nervous about exploring uncharted terrain.

The Dutch trial is now well ahead of the Belgian one. “In Holland there is a ruling by an appeals court, in Belgium the appeal will not be heard until after April 2012,” Walleyn explains. The Belgian judge argued that it is now too late to bring a claim of direct responsibility against the state. Walleyn contends that this is not the case. “The period in which such a claim may be filed begins when the victim first finds out who is responsible for the crime committed. And that is the very question: who is responsible? The Rwandans of course knew they had been abandoned by the peacekeepers. But the fact that that was the responsibility of people who made a decision in Brussels is something they did not know.”

Door ajar
Do victims, after these two cases, know where they can take legal action? Not necessarily so, Zegveld cautions. “Whether a country indeed has ‘effective authority’ is something that needs to be determined case by case. But the principle that it is possible has now been established by a Dutch court. Walleyn too is cautious. “Both rulings have opened the door somewhat.” Even so, he warns, states can no longer hide behind the claim that the United Nations is immune.

(cl/ae)

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