State liability for failure to protect others: Srebrenica Cases

International audienceOver recent years, a number of legal decisions have been taken that represent realnovelties in the field. They address state liability towards foreigners in a realm whereimmunity has long prevailed. Dutch courts have condemned the Dutch state for failure toprotect Bosniacs after the fall of the enclave of Srebrenica in 1995. The novelty of these courtdecisions is most apparent when they are compared to the previous investigations and reportson the fall of the Srebrenica enclave, which had the intended or de facto effect of leavingaside state liability. This article focuses on this comparison. The decisions of the Dutch courtrepresent a change with regard to a trend in which collective responsibility was reduced to ascarecrow argument, where state liability for genocide was limited to the obligation to addresscriminal responsibility, and where co-agency was a shield preventing the attribution of stateresponsibility. Not only do these court decisions sanction state liability, they also address thevictims and even grant them reparations