So far, the Dutch courts seem to think that the answer to these questions is a resounding "No!" Faced with a class action lawsuit filed by the "Mothers of Srebrenica" against the United Nations for their failure to prevent the massacre, a Dutch court found earlier this year that it had no jurisdiction because the UN is immune from suit. Closing the loop, a Dutch court found this week that the Dutch government also could not be held responsible for the massacre because its troops were operating in Bosnia under a UN mandate.
One can see the theoretical argument behind this approach, akin to Good Samaritan laws: UN peacekeepers are simply trying to minimize the impacts of the actions of some very very bad actors, and shouldn't be held responsible for botched interventions. Moreover, in times of war, military leaders must make difficult decisions under severe time pressure, and their ability to act decisively may be compromised if they feel a lawyer breathing down their neck. But the question remains -- would the Bosnian Muslims have been better off without this UN-created safe haven that went so very wrong? Should the responsible actors at the UN, from the Security Council to the UN Commander in Bosnia, be held liable? If so, should the law aim to make the victims whole or to prevent these actors from making similar mistakes in the future (or both)?
Thus far, international legal accountability for grave atrocities has been marked by a focus on the perpetrators of crimes rather than the failures of those who intervene, and perhaps that's right -- perhaps courts of law shouldn't play a role in incentivizing humanitarian action. But if the massacre at Srebrenica can teach us anything, it's that we need something more than the current loop of immunity to ensure that future humanitarian missions do more good than harm.
Cross-posted at IntLawGrrls.