European Court of Human Rights

Information Note on the Court’s case-law No. 164

June 2013

Stichting Mothers of Srebrenica and Others v. the Netherlands (dec.) - 65542/12

Decision 11.6.2013 [Section III]

Article 6

Civil proceedings

Article 6-1

Access to court

Decision of Netherlands courts to decline jurisdiction to hear claim against the UN arising out of the Srebrenica massacre: inadmissible

 

Facts - The applicants are a foundation established under Netherlands law to bring proceedings on behalf of relatives of victims of the 1995 Srebrenica massacre, and ten nationals of Bosnia and Herzegovina who are surviving relatives of people killed in the massacre. The massacre occurred during the 1992-95 war in Bosnia and Herzegovina, when the town of Srebrenica, which was part of a UN Security Council declared “safe area”, came under attack by the Bosnian Serb Army (VRS). More than 7,000 Bosnian Muslims died in the operation which an under-strength and under-equipped battalion of the UN Protection Force (UNPROFOR), made up of lightly-armed Netherlands soldiers, was unable to stop. In addition, despite a request from the battalion’s commander for air support, the UN made no decisive use of air power.

The applicants brought civil proceedings against the Netherlands State and the UN before a regional court in the Netherlands, but in July 2008 the court held that there was no obligation on the Netherlands Government under international law to enforce the prohibition of genocide through its civil law and that it had no jurisdiction to hear the claim against the UN. On 13 April 2012 the Netherlands Supreme Court confirmed that under the applicable provisions, of the UN Charter and of the Convention on the Privileges and Immunities of the United Nations, the UN had far-reaching immunity and could not be summoned before the national courts of the countries that were parties to the latter Convention. The UN’s immunity was absolute and intended to ensure its functioning in complete independence. The main proceedings against the Netherlands State were resumed and were still pending at the date of the Court’s decision.

In their application to the European Court the applicants complained, inter alia, that the granting of immunity to the UN had violated their right of access to court, contrary to Article 6 of the Convention. They further complained that the Netherlands Supreme Court had rejected in summary reasoning their request for a preliminary ruling to be sought from the Court of Justice of the European Union.

Law - Article 6 § 1

(a)  Standing of the applicant foundation - Although set up for the purpose of promoting the interests of surviving relatives of victims of the Srebrenica massacre, the applicant association had not itself been affected by the matters complained of under Articles 6 and 13 and could not, therefore, claim to be a “victim” of a violation of those provisions for the purpose of Article 34.

Conclusion: inadmissible in respect of the applicant foundation (incompatible ratione personae).

(b)  Immunity of the United Nations - The Court underlined that the scope of the case before it was limited to the question whether the remaining applicants’ right of access to a court under Article 6 had been violated by the Netherlands courts’ decisions. The attribution of responsibility for the Srebrenica massacre or its consequences did not fall within the scope of the application.

As to the nature of the immunity enjoyed by the UN, the Court noted that it was not its role to seek to define authoritatively the meaning of provisions of the UN Charter and other international instruments. It nevertheless had to examine whether there had been a plausible basis in those instruments for the matters complained of. Since operations established by UN Security Council Resolutions under Chapter VII of the UN Charter were fundamental to the mission of the UN to secure international peace and security, the Convention could not be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the UN. To bring such operations within the scope of domestic jurisdiction would mean to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the UN in this field, including with the effective conduct of its operations.

Concerning the applicants’ argument that, since their claim was based on an act of genocide for which they held the UN (and the Netherlands) accountable, the immunity protecting the UN should be lifted, the Court found that international law did not support the position that a civil claim should override immunity from suit for the sole reason that it was based on an allegation of a particularly grave violation of a norm of international law. The International Court of Justice (ICJ) had clearly stated this in respect of the sovereign immunity of foreign States in its Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening) judgment of 3 February 2012. In the Court’s opinion this also held true as regards the immunity enjoyed by the UN.

As regards the argument that there was no alternative jurisdiction competent to entertain the applicants’ claim against the UN, the Court agreed that no such alternative means existed either under Netherlands national law or under the law of the UN. However, it did not follow that in the absence of an alternative remedy the recognition of immunity in itself constituted a violation of the right of access to a court. The fact that the UN had so far not made available any modes of settlement of claims relating to the acts and omissions of UNPROFOR was not imputable to the Netherlands and the nature of the applicants’ claims did not require the Netherlands to step in.

Finally, the Court considered it more appropriate to examine the applicants’ complaint that the State of the Netherlands was seeking to impute responsibility for the failure to prevent the Srebrenica massacre entirely to the UN, thereby attempting to evade its accountability, under Article 6 rather than under Article 13. The Court could not find it established that the applicants’ claims against the Netherlands State - the proceedings in respect of which were still pending - would necessarily fail.

In conclusion, the granting of immunity to the UN had served a legitimate purpose and was not disproportionate.

Conclusion: inadmissible (manifestly ill-founded).

The Court also rejected as manifestly ill-founded the applicants’ complaint that the Supreme Court of the Netherlands had dismissed on summary reasoning their request for a preliminary ruling to be sought from the Court of Justice of the European Union. Having already found that the UN enjoyed immunity from national jurisdiction under international law, the Supreme Court had been entitled to consider a request for a preliminary ruling redundant without going further into the matter.

Conclusion: inadmissible (manifestly ill-founded).

 

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