State Liability for Failure to Protect Others. Srebrenica Cases

Over recent years, a number of legal decisions have been taken that represent real novelties in the field. They address state liability towards foreigners in a realm where immunity has long prevailed. Dutch courts have condemned the Dutch state for failure to protect Bosniacs after the fall of the enclave of Srebrenica in 1995. The novelty of these court decisions is most apparent when they are compared to the previous investigations and reports on the fall of the Srebrenica enclave, which had the intended or de facto effect of leaving aside state liability. This article focuses on this comparison. The decisions of the Dutch court represent a change with regard to a trend in which collective responsibility was reduced to a scarecrow argument, where state liability for genocide was limited to the obligation to address criminal responsibility, and where co-agency was a shield preventing the attribution of state responsibility. Not only do these court decisions sanction state liability, they also address the victims and even grant them reparations.