The Immunity of the United Nations in Relation to the Genocide in Srebrenica in the Eyes of a Dutch District Court

Author: Spijkers, Otto

Source: Journal of International Peacekeeping, Volume 13, Numbers 1-2, January 2009 , pp. 197-219(23)

Publisher: Martinus Nijhoff Publishers, an imprint of Brill

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Abstract:

The Srebrenica genocide has come before three different courts in The Hague, the Netherlands. The International Court of Justice looked at the responsibility of the Republic of Serbia; the International Criminal Tribunal for the former Yugoslavia looked at the responsibility of certain individuals. No court has as yet dealt with the responsibility of the United Nations ('UN') itself. Ten relatives of victims of the genocide and a foundation called the Mothers of Srebrenica believed this to be a role for the judges of the District Court in The Hague. However, on 10 July 2008, the Dutch Court affirmed the UN's immunity and declared it had no jurisdiction to hear the action against it. This article discusses that judgment. It will look at the applicable immunity provisions, i.e. Article 105 of the UN Charter and the Convention on the Privileges and Immunities of the United Nations, their conceptual foundation (the doctrine of functional necessity), and the role of the Dutch Court in interpreting and applying these provisions. It will also look at a possible clash between respect for the absolute immunity of the UN and other legal obligations for the Netherlands, including those under the Genocide Convention, and the European Convention on Human Rights.

Keywords: PEACEKEEPING; PEACE OPERATIONS; IMMUNITY; FUNCTIONAL NECESSITY; UNITED NATIONS; SREBRENICA; ATTRIBUTION; GENOCIDE; RIGHT TO A FAIR TRIAL

Document Type: Research article

DOI: http://dx.doi.org/10.1163/187541109X403043

Publication date: 2009-01-01