donderdag 7 maart 2013

No criminal inquiry in Srebrenica case


The Public Prosecution Service will not initiate a criminal inquiry against Messrs. Karremans (Commander Dutchbat III), Franken (Deputy Commander Dutchbat III) and Oosterveen (Human Resources Officer Dutchbat III). On the basis of intensive and conscientious examinations of the facts, the Public Prosecution Service decided that Karremans, Franken and Oosterveen cannot be held liable under criminal law for having been involved in the crimes committed by the Bosnian-Serbian army (VRS) in July 1995 in Srebrenica.

On 5 July 2010, the Public Prosecution Service received a report concerning the involvement of Karremans, Franken and Oosterveen in offenses committed in Srebrenica in July 1995. The report had been filed following the death of Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic and not the deaths of the other evacuees who perished after they had left the compound. In the report, Karremans, Franken and Oosterveen are accused of having removed afore-mentioned victims from the compound and of handing them over to the VRS knowing that this would eventually lead to their deaths. The VRS was under the command of Mladic.

Examination of the facts
Following the report, an examination of the facts was initiated. The reason for this examination was to judge – based on (already) available data and on data referred to in the report – whether with regard to Karremans, Franken and Oosterveen there was cause to initiate a criminal inquiry.

In 1998, the Public Prosecution Service conducted an inquiry into, among other matters, the criminal involvement of the Dutch military forces in the evacuation of the population in the Srebrenica enclave in July 1995. At the time, there was no evidence that the Dutch soldiers who formed part of Dutchbat III had been guilty of any offense while carrying out their supervising tasks.

Various sources referred to in the report as well as other available sources have been examined comprehensively for the existence of incriminating and exculpatory evidence with regard to the report.

An analysis was made of the context in which the imputable conduct took place and the legal scope against which this conduct should be assessed. Important sources which served as reference included: the defense report ‘Debriefing Srebrenica’ (October 1995), the ‘Accounts of the Facts Debriefing Srebrenica’ (22 September 1995), the NIOD report ‘Srebrenica, a ‘Safe’ Area’ (2002), the reports of the Secretary-General of the UN (November 1995 and November 1999), the testimonies rendered by the Dutch soldiers before the International Criminal Tribunal for the former Yugoslavia (ICTY) and the testimonies rendered in the civil proceedings of those who filed the report against the Dutch State. The inquiry has taken considerable time since the report was made in July 2010. Not only because of the huge quantity of data which was examined. This is also an extremely complex and sensitive case. At various moments, there has been extensive internal consultation of the sub-results of the inquiry and the analysis, and more detailed investigative instructions were formulated and executed. In addition to this, advice was obtained from a number of other departments of the Public Prosecution Service (National Office of the Public Prosecution Service, Office of the Prosecutor General and the Appeal Court Public Prosecution Office Arnhem- Leeuwarden).

Events around the Fall of Srebrenica
After Srebrenica was designated as a ‘safe area’ by the UN Security Council in 1993, an area in which the population was supposed to be safe from weapons and other threats, in the summer of 1993, the Dutch government appeared to be prepared to provide, for the duration of 18 months, an infantry battalion for the UN-Mission in Bosnia-Herzegovina.

The first battalion (Dutchbat I) arrived in March 1994. In July of that year, this battalion was succeeded by Dutchbat II, which in turn was relieved by Dutchbat III in January 1995.

The tasks of Dutchbat were aimed at a traditional peace keeping mission, i.e. an operation in which the battling forces have made peace and the ‘blue helmets’ act as independent third parties. It was Dutchbat’s task to discourage battling forces to attack the safe area just by their presence in this area. The mandate did not provide for protection of the population by defending the safe area.

Neither Dutchbat, nor UNPROFOR and the international community proved to be capable to influence the developments during the months, weeks and days prior to the fall of the Srebrenica enclave, and to prevent the attack on the enclave or to stop it. The different investigations carried out in the course of the years into the events surrounding the fall of Srebrenica attribute this failure to a significant extent to a deficient mandate, faulty (international) political and military supervision, insufficient troops, light armament and the restrictions with respect to the use of violence.

After the VRS did not permit the entrance of fuel transports in the enclave in February 1995, Dutchbat faced serious fuel shortages. Also, applications for supply convoys were systematically hindered and at the end of April, the VRS even closed off the enclave hermetically. Because of this approximately 150 soldiers on leave were unable to return to the area and the delivery of supplies became impossible. Soon after, shortages of the barest necessities arose such as heating, lighting, warm water and bathing facilities. Also, drinking water and food supplies took on worrying proportions which led to various physical complaints of the soldiers which hindered their proper functioning. Since the UNHCR aid convoys were unable to reach the enclave anymore either, a very precarious food situation arose for the population in the enclave as well.

Early June, the first Observation Post (OP) fell into the hands of the VRS. After the enclave was attacked by the VRS on 6 July 1995, the other OPs were captured one after the other by the VRS, during which actions the VRS did not shy away from the use of violence. In many cases the men were forced to leave their weapons behind and a number of Dutch soldiers fell into the hands of the VRS. In the evening of 9 July 1995, the VRS had approached Sebrenica-city up to one kilometer.

Although on 10 July 1995, Dutchbat had placed themselves in different blocking positions, the VRS advanced incessantly. Despite several requests, air support failed to arrive. In the afternoon of 11 July 1995, air support arrived but was immediately stopped after the VRS had threatened to kill the Dutchbat soldiers who had been taken hostage. The VRS continued its advance and, using abundant violence, Srebrenica-city was captured in the late afternoon of 11 July 1995.

The consequence of the attack on the enclave was that the population and the units of the Bosnian Muslim Army (ARBiH) present in the enclave fled the enclave. In the course of the day, a large part of the population had found a safe haven in the Potocari compound.

Since the VRS threatened to use artillery fire if Dutchbat were to allow refugees into the compound, the refugees were entered, out of sight of the VRS, through a hole in the fence at the back side of the compound. Around 5000 refugees were housed in a large factory on the premises. The other refugees, approximately 27.000, remained outside the compound.

In view of the furtherance of the humanitarian situation for the refugees who were staying in and around the compound, in the early evening of 11 July 1995, Karremans received the instruction from Headquarters in Sarajevo to take every possible measure to protect the refugees. Shortly thereafter, he also got the instruction to start negotiations with the VRS concerning the evacuation of the refugees. In this respect, Karremans opted for an evacuation executed by UNPROFOR and, from the very start, he indicated that he wanted to take the local staff along. According to Karremans, Mladic made the requirement that the local staff would have to be in possession of a UN-pass. Upon this, Karremans instructed his staff to draw up a list of names.

In the early morning of 12 July 1995, Mladic unexpectedly stated that the VRS was to arrange for the transport. In addition to this, Mladic wanted to see all the men between the ages of 17 and 60 in order to determine whether there were any war criminals amongst them. Around 1.00 PM that day, the first busses and trucks arrived at the compound in Potocari and the first busses carrying refugees left. In addition, the VRS started to separate the men from their families. The men were taken to a house called ‘the White House’ where they were interrogated by the VRS. Quite soon, the battalion commander received reports which unmistakably indicated that (serious) physical violence was used by the VRS in that house.

The initial plan to have a Dutch soldier ride on each bus soon appeared not to be workable. The plan to send a military vehicle along with each convoy was frustrated by the VRS. The VRS took possession of weapons and vehicles that belonged to the Dutch soldiers. Dutchbat was powerless to do anything about that. Later that day it became clear to Karremans and Franken that the buses with the men did not arrive at the agreed destination. (Kladanj).

Around noon all refugees who had been staying outside the compound had left. Next the refugees who were still at the compound in Potocari were evacuated. Early in the evening these refugees had also left.

Criminal liability for being involved in taking the lives of the victims named in the report On the basis of the examination of the facts the Public Prosecution Service has formed the following picture of the events which took place on 13 July 1995 concerning Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic and the role played by Karremans, Franken and Oosterveen in relation to these events.

Muhamed Nuhanovic
Muhamed Nuhanovic was the brother of Hasan Nuhanovic (who filed the report) and who was acting as interpreter for the monitoring mission of the United Nations (UNMO). Hasan Nuhanovic feared for the fate of his brother and was searching for a possibility to prevent that Muhamed Nuhanovic was forced to leave the compound. During the negotiations with Mladic, Karremans had made it a condition that the local personnel that was employed by the United Nations would leave the enclave together with Dutchbat. Karremans instructed his staff to draw up a list of names (the so-called “list of 29”) in order to set out clearly which persons were concerned. The VRS had demanded Dutchbat to submit a list of names. A Dutch UNMO officer was prepared to pretend that Muhamed Nuhanovic had been employed shortly before as a cleaner and therefore needed to be considered as a member of the staff who would enjoy the protection agreed upon by Mladic. In the morning of 13 July 1995, the Dutch UNMO officer handed the list to Franken. However, Franken did not want any names on the list of persons who did not possess the required documents that could prove their employment with the United Nations or another international organization.

Muhamed Nuhanovic did not possess such evidence. Franken instructed his staff to inquire whether it would be possible to produce a copy of a UN identity card at the compound. It appeared that this was not the case. Franken was seriously taking into account that the VRS would conduct an inspection and feared for reprisals in case of discovery of the forged document and consequently for the life of the local personnel who did possess a UN identity card.

In the eyes of the Public Prosecution Service, the given circumstances of that moment and the powerless position of Dutchbat justify the weighing up of interests made by Franken and the decision taken by him on the basis of these circumstances. For that reason Franken cannot be held liable under criminal law. The Public Prosecution Service has established that Karremans’ involvement in the events concerning Muhamed Nuhanovic has not been relevant and that Oosterveen’s involvement was nil. Therefore both cannot be held liable under criminal law either.

Ibro Nuhanovic
Ibro Nuhanovic was staying at the compound together with his wife and two sons, Hasan Nuhanovic (who filed the report) and Muhamed Nuhanovic. Together with two other refugees, Ibro Nuhanovic formed part of the refugee committee which assisted Karremans during the negotiations with Mladic concerning the evacuation of the refugees. On that occasion Mladic had given the impression that Ibro Nuhanovic had been granted safe-conduct and would therefore be allowed to stay at the compound. Franken pointed this out to Ibro Nuhanovic when early in the evening of 13 July 1995 he saw that Ibro Nuhanovic was heading towards the entrance gate of the compound together with his family and the last group of refugees. Ibro Nuhanovic did not want to let his wife and son leave without him and decided to leave the compound together with them. Oosterveen cannot be linked in any way to Ibro Nuhanovic’s departure from the compound. The Public Prosecution Service believes that Karremans, Franken and Oostveen have not committed any relevant unlawful actions in this respect. Ibro Nuhanovic’s decision to leave the compound can be traced back to the decision taken by Franken to not allow Muhamed Nuhanovic to evacuate together with Dutchbat. Now that this decision taken by Franken is not deemed to be culpable behavior, Karremans nor Franken can be held liable for Ibro Nuhanovic’s decision to leave the compound and his subsequent death within the scope of criminal law.

Rizo Mustafic
Rizo Mustafic together with his family had also taken refuge within the compound. He had been employed by the local government of Srebrenica (Opstina) and worked at the compound as an electrician. Considering the fact that he had been working for Dutchbat since the beginning of 1994, he had acquired a special position compared to other Opstina personnel.

Although Rizo Mustafic was employed by the Opstina and therefore not employed by the United Nations, there is some evidence that his name had been on the list of names and that Rizo Mustafic was aware of this. In the morning of 13 July 1995, Rizo Mustafic walked up to Oosterveen and they had a short conversation during which Rizo Mustafic made it clear that he would stay in the compound. Based on instructions which he had received earlier from the battalion commander, Oosterveen observed that only local staff which had been employed by the United Nations was entitled to stay in the compound. That same evening, after Rizo Mustafic had already left the compound and Oosterveen had informed Franken about their conversation of that morning, Franken told Oosterveen that Rizo Mustafic would have been allowed to stay in the compound. Franken considered Rizo Mustafic to be a local staff member who enjoyed special protection and he reproached Oosterveen for having made an enormous and stupid mistake.

Karremans did not see Rizo Mustafic during those days and only noticed his departure after 13 July 1995. Karremans considered Rizo Mustafic to be a permanent staff member and had not realized that Rizo Mustafic had not actually been employed by the United Nations. The events around Rizo Mustafic are due to a dramatic misunderstanding. Karremans, Franken and Oosterveen cannot be held liable for this misunderstanding under criminal law.

Based on the examination of the facts the Public Prosecution Service concludes that no criminal charges may be filed against Karremans, Franken and Oosterveen for having been involved in the killing of Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic by the VRS. According to the opinion of the Public Prosecution Service there is no evidence which obliges them to conduct further (criminal) inquiries.

Meanwhile, the Court of Appeal in The Hague has ruled that the State of the Netherlands is liable for the death of Rizo Mustafic, Ibro Nuhanovic and Muhamed Nuhanovic under civil law, which judgment was contested in cassation, so therefore this judgment is not final yet.

Nevertheless, the nature of the examination which resulted in that judgment is essentially different from the examination in connection with the question whether any relevant charges may be filed against Karremans, Franken and Oosterveen individually under criminal law.

District Public Prosecutor’s Office / Netherlands East
7 March 2013)

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