The Right to Life in the Mothers of Srebrenica Case: Reversing the Positive Obligation to Protect from the Duty of Means to that of a Result

Abstract

In July 1995, Bosnian Serbs killed between 7,000 and 8,000 Bosniac1 males in a matter of days. This took place in and around the region of Srebrenica, which ironically was designated a ‘safe area’ by the United Nations (‘UN’). At the time, the Dutch armed troops were on the ground in Srebrenica in a UN mission to establish peace. In the Mothers of Srebrenica case the Dutch courts had to decide whether the Dutch troops on the ground had failed to ensure the right to life and prohibition of torture of thousands of Bosniac males. In 2019, the Dutch Supreme Court found that, if the Dutch troops had allowed (only) approximately 350 Bosniac males to remain in their compound, those victims would have had 10% chance of survival. Nevertheless, the Court found the Dutch troops’ other actions, including the alleged failures to protect other victims in Srebrenica and to report war crimes to the UN, and the Dutchbat involvement in separation of Bosniac males, who were handed over to Bosnian Serbs, to be lawful. In this paper, I argue the Dutch Supreme Court reversed the test of positive obligations under Articles 2 and 3 of the European Convention on Human Rights (‘ECHR’ or ‘Convention’) from the duty of means to that of a result and failed to diligently examine the decision-making, planning and operations of Dutchbat to determine whether, at the time, the State authorities had done all they could have reasonably done to protect or, at the least, minimise the risk to life.