A. v. The Minister of Defence

Court	Administrative High Court Three-judge Section, The Netherlands
Case number	05/6963 MAW-T, 05/7103 MAW-T and 12/953 MAW-T
Decision title	Interim judgment on the appeal against the Court of The Hague’s judgment of 1 November 2005
Decision date	25 March 2013
Parties	A The Minister of Defence
Other names	Dutchbat III soldier v. The Minister of Defence
Keywords	Duty of care; PTSD; Dutchbat
Links	Interim judgment (in English)

Summary

The appellant is a former soldier of Dutchbat III, a battalion which was part of the United Nations peacekeeping mission that was charged with the protection of civilians in the Bosnian Muslim enclave of Srebrenica. The appellant claimed that he suffered from post-traumatic stress disorder (PTSD) after being confronted with the atrocities against the Bosnian Muslim population of Srebrenica and experiencing the explosion of a nearby mortar shell. He brought a complaint against the Dutch Minister of Defence and requested compensation for not receiving the necessary care after the mission.

On 1 November 2005, the District Court of The Hague held that the Minister of Defence failed to provide the necessary aftercare for his soldiers after the fall of Srebrenica and upon their return to the Netherlands.

On 25 March 2013, the Administrative High Court of the Netherlands ruled that necessary care was provided during the mission in Srebrenica because the soldiers were trained and equipped. However, the Court affirmed that the Dutch Minister of Defence failed to provide necessary care for his soldiers after they returned home. As a result, the Court found that the Minister could be held liable for the PTSD of the soldier which he developed after the mission.

Procedural history

A former Dutch soldier who was a member of Dutchbat III, a battalion of Dutch soldiers charged with the protection of civilians in the Muslim enclave of Srebrenica in 1995, suffered from post-traumatic stress disorder (PTSD). The ‘Dutchbatter’ suffered from PTSD as a result of events he experienced during the mission in Srebrenica; he was confronted with atrocities committed by the Bosnian Serb army against the Muslim population, and a mortar shell exploded close to his observation post. The ‘Dutchbatter’ stated that his condition deteriorated because he did not receive sufficient care after the mission.

On 29 June 2000, the ‘Dutchbatter’ requested compensation from the Dutch Minister of Defence for the physical and mental damage incurred as a result of the Minister’s failure to provide sufficient aftercare.

On 19 March 2003, the Minister rejected liability for the damage incurred and refused to pay compensation.

On 1 November 2005, the District Court of The Hague declared the appeal of the soldier well-founded, reversed the contested decision and ordered the Minister to take a new decision in compliance with its judgment. The Court stated that the Minister had not exercised his duty of care properly and failed to do what might be reasonably expected of him with regard to taking precautions and ensuring the safety of the soldiers. Both parties lodged an appeal against this verdict.

Related developments

In August 2013, the Ministry of Defence announced that an agreement had been reached between the 'Dutchbatter' and the Ministry of Defence. No information about the amount of the compensation has been made public. For more information, see this news article (in Dutch).

Legally relevant facts

The Dutchbat (III) mission took place within the framework of the UN’s UNPROFOR peacekeeping operation in Bosnia. In July 1995, the Bosnian Serb army, under command of General Ratko Mladic, attacked the Bosnian Muslim enclave of Srebrenica and managed to take over the area controlled by Dutchbat III. As a result, nearly 8,000 Bosnian Muslim men were killed.

The incident also triggered legal proceedings against General Mladic, who is currently on trial at the International Criminal Tribunal for the former Yugoslavia (ICTY) in The Hague.

Core legal questions

Did the District Court of The Hague err in holding that the Minister of Defence failed to provide sufficient aftercare to the former soldier?

Specific legal rules and provisions

General Military Personnel Regulations, 25 February 1982 - Article 147 (Data recording and notification of accidents)

Court's holding and analysis

On 25 March 2013, the Administrative High Court of the Netherlands found that the Minister of Defence - as an employer - had not provided sufficient aftercare to the soldiers returning home from their deployment in the Bosnian enclave of Srebrenica. In particular, the Court held that no psychological debriefing had taken place in Zagreb nor shortly after the soldiers returned home from Srebrenica, the "low-level" care provisions were ‘insufficient’ and not known to the appellant, the appellant was not invited for a reintegration interview after his return to the Netherlands, he was not informed about the care provisions by means of the leaflet ‘Return and Homecoming’, and had not received the questionnaire sent out by the Ministry of Defence (paras. 4.5.4–4.5.6).

On the basis of these arguments, the Court held that the Minister of Defence had breached its duty of care. As a result, the Court took the view that the causal link with PTSD was an established fact, unless the Minister could prove that the PTSD could be attributed to other disorders suffered by the appellant. However, the Court concluded that the Minister of Defence had failed to prove this (paras. 4.7–4.7.2).

The Court argued, however, that during the mission the duty of care was sufficiently exercised. In particular, the soldiers had received sufficient training and the equipment available to them met the necessary technical standards. The Court stated that the Minister could not be held liable for wartime conditions in Srebrenica (para. 4.2.4).

The Minister of Defence was ordered to take a new decision within three months, which the High Court would evaluate before issuing a final judgment (para. 6).