Uitspraak Nº 200.158.313/01 and 200.160.317/01 (Engelse vertaling). Gerechtshof Den Haag, 2017-06-27

• ECLI: ECLI:NL:GHDHA:2017:3376
• Docket Number: 200.158.313/01 and 200.160.317/01 (Engelse vertaling)
• Date: 27 Junio 2017
• Court: Gerechtshof Den Haag (Nederland)

COURT OF APPEAL AT DEN HAAG

Civil-law sector

Case numbers : 200.158.313/01 and 200.160.317/01

Case number District Court : C/09/295247 / HA ZA 07-2973

Judgment on appeal of 27 June 2017

in the case of

1. [appellant 1],

living in [place of residency], Bosnia and Herzegovina,

2. [appellant 2],

living in [place of residency], Bosnia and Herzegovina,

3. [appellant 3],

living in [place of residency], Bosnia and Herzegovina,

4. [appellant 4],

living in [place of residency], Bosnia and Herzegovina,

5. [appellant 5],

living in [place of residency], Bosnia and Herzegovina,

6. [appellant 6],

living in [place of residency], Bosnia and Herzegovina,

7. [appellant 7],

living in [place of residency], Bosnia and Herzegovina,

8. [appellant 8],

living in [place of residency]), Bosnia and Herzegovina,

9. [appellant 9],

living in [place of residency], Bosnia and Herzegovina,

10. [appellant 10],

living in [place of residency], Bosnia and Herzegovina,

11. the Association MOTHERS OF SREBRENICA,

registered in Amsterdam,

in the case with case number 200.160.317:

appellants in the principal appeal,

respondents in the cross-appeal,

in the case with case number 200.158.313:

respondents in the principal appeal,

appellants in the cross-appeal,

hereinafter referred to as: the Association et al. (plural),

attorney: M.R. Gerritsen, LLM of Haarlem,

v.

THE STATE OF THE NETHERLANDS (Ministry of General Affairs, Ministry of Defence and Ministry of Foreign Affairs),

having its seat in The Hague

in the case with case number 200.160.317:

respondent in the principal appeal,

appellant in the cross-appeal,

in the case with case number 200.158.313:

appellant in the principal appeal,

respondent in the cross-appeal,

hereinafter referred to as: the State,

attorney: G.J.H. Houtzagers, LLM, of The Hague.

Appeal proceedings

In the case with case number 200.160.317:

1.1 By writ of 14 October 2014, the Association et al. summoned the State to appear in appeal proceedings, moving that the Court of Appeal should reverse the judgment of the District Court of 16 July 2014 in so far as the claims of the Association et al. against the State were dismissed, and that the Court of Appeal, in a new judgment, should allow the claims in their entirety in second instance.
In their statement of appeal (with exhibits) of 7 July 2015, the Association et al. changed their claim and put forward 48 grounds for appeal against the judgment. On 26 January 2016, the State contested these grounds in their defence on appeal, also statement of appeal in cross-appeal, and in turn brought a cross-appeal, referring to the grounds submitted in the case with case number 200.158.313 for the details.

In the case with case number 200.158.313

1.2 By writ of 9 October 2014, the State summoned the Association et al. to appear in appeal proceedings, moving that the Court of Appeal should reverse the judgment of the District Court of 16 July 2014 and dismiss the claims of the Association et al. in their entirety.
In their statement of appeal of 7 July 2015, the State put forward 5 grounds for appeal against the judgment. The Association et al. contested these grounds in their defence on appeal, also statement of appeal in cross-appeal, and in turn brought a cross-appeal referring for the details to the grounds submitted in the case with case number 200.160.137.

Furthermore, in both cases:

1.3 By an instrument of deposit dated 12 September 2016, the Association et al. filed a flash drive containing images. The following documents that had been filed with the District Court before were not filed with the Court of Appeal: the NIOD [Netherlands Institute for War Documentation] (hereinafter: the NIOD) report of 2002, “Srebrenica. Een ‘veilig gebied’. Reconstructie, achtergronden, gevolgen en analyses van de val van de Safe area” [Srebrenica. A ‘Safe Area’. Reconstruction, backgrounds, consequences and analyses of the fall of the Safe Area], parts I through III (hereinafter: the NIOD report), the Parliamentary Inquiry on Srebrenica: “Missie zonder Vrede” [Mission without Peace], final report submitted to the House of Representatives on 27 January 2003 (Parliamentary Papers II 2002/2003, 28506, nos. 2-3), and the Parliamentary Inquiry on Srebrenica “Missie zonder Vrede”, the interviews (Parliamentary Papers II 2002-2003, 28506, no. 5). These documents are public documents and can be consulted via the Internet. In accordance with the manifest wish of both parties, these documents are part of the case files via the public domain.

1.4 On 6 October 2016, the parties had their cases pleaded submitting and referring to memoranda of oral pleading; the Association et al. by M.R. Gerritsen, LLM and S.A. van der Sluijs, LLM, attorneys of Haarlem, and the State by G.J.H. Houtzagers, LLM and K. Teuben, LLM, attorneys of The Hague. In conclusion, the parties applied for judgment on appeal in both cases.

Facts acknowledged between the parties on appeal

In both cases:

2.1 The Court of Appeal considers that the following has been acknowledged as having been argued by one party and not contested or not contested on sufficiently reasoned grounds by the other party, as well as in view of the facts found (in Finding of Fact sub 2 or in Assessment sub 4) by the The Hague District Court and what is not contested or no longer contested on appeal.

2.2 Until 1991, the Socialist Federal Republic of Yugoslavia consisted of six (constituent) republics, i.e. Bosnia and Herzegovina, Croatia, Macedonia, Montenegro, Serbia, and Slovenia. These republics were inhabited by different ethnic groups (Croats, Serbs, Muslims, and others) who formed a majority or a minority in the various republics. Throughout the ages there was both peaceful coexistence and conflict. Conflict always moved along the said ethnic lines.

In 1991, the constituent republics Slovenia and Croatia declared themselves independent of the Socialist Federal Republic of Yugoslavia. Subsequently, fighting erupted in both republics.

2.3 The warring factions in Croatia reached an armistice agreement on 2 January 1992 and accepted a peace plan, which provided for deploying a UN peacekeeping force. The United Nations Security Council (hereinafter: the Security Council), by Resolution 743 of 21 February 1992, formed the United Nations Protection Force (hereinafter: UNPROFOR) with its headquarters in Sarajevo. The Resolution reads, inter alia:

“Concerned that the situation in Yugoslavia continues to constitute a threat to international peace and security (…),

Recalling its primary responsibility under the Charter of the United Nations for the maintenance of international peace and security,

(…)

Convinced that the implementation of the United Nations peace-keeping plan will assist the Conference on Yugoslavia in reaching a peaceful political settlement,

1. Approves the report of the Secretary-General of 15 and 19 February 1992 (…);

2. Decides to establish, under its authority, a United Nations Protection Force in accordance with the above-mentioned report and the United Nations peace-keeping plan, and requests the Secretary-General to take the measures necessary to ensure its earliest possible deployment;

(…)
5. Recalls that, in accordance with paragraph 1 of the United Nations peace-keeping plan, the Force should be an interim arrangement to create the conditions of peace and security required for the negotiation of an overall settlement of the Yugoslav crisis;

(…)

8. Urges all parties and others concerned to comply strictly with the cease-fire arrangements signed at Geneva on 23 November 1991 and at Sarajevo on 2 January 1992, and to cooperate fully and unconditionally in the implementation of the peace-keeping plan;

9. Demands that all parties and others concerned take all the necessary measures to ensure the safety of the personnel sent by the United Nations (…)”

As from 1 April 1995 UNPROFOR was renamed United Nations Peace Forces (hereinafter: (also) UNPROFOR or UNPF).

2.4 On 3 March 1992, the (constituent) republic of Bosnia and Herzegovina also declared itself independent of the Socialist Federal Republic of Yugoslavia after a referendum. On 27 March 1992, the Bosnian Serbs (the Serbs living in Bosnia) in turn declared themselves independent of this new state of Bosnia and Herzegovina and declared their own independent state, the Republika Srpska. Subsequently, fighting erupted between the army of Bosnia and Herzegovina, dominated by Bosnian Muslims (Armija Bosna I Herzegovina (hereinafter: ABiH)) and the Bosnian Serb army (supported by the rump state Yugoslavia under the command of S. Milošović) (Bosnian Serb Army (hereinafter: BSA) or Vojska Republijke Srpske (hereinafter: VRS)).

2.5 By Resolution 758 of 8 June 1992, the Security Council extended the UNPROFOR mandate to include Bosnia and Herzegovina.

2.6 Srebrenica is a city situated in eastern Bosnia and Herzegovina (hereinafter: the city of Srebrenica). From 1992, eastern Bosnia and Herzegovina was the scene of fighting, first between Muslim fighters and Serbian militias, later between the AbiH and the VRS. As a result, Muslim enclaves developed. The enclave ‘Srebrenica’ was one of them. This enclave, which was controlled by the Muslim fighters and later by the ABiH, consisted of an area of almost 900 square kilometres around the city of Srebrenica in January 1993. After fights with the Bosnian Serbs, this area was reduced to approximately 150 square kilometres around the city of Srebrenica in March 1993.

2.7 In early 1993, Srebrenica was surrounded and became isolated. Relief convoys sent by the United Nations High Commissioner for Refugees (hereinafter: UNHCR) were stopped by the VRS. Helicopters were fired at by the VRS. A humanitarian crisis developed with lack of water, food...