© Van Diepen Van der Kroef Advocaten

Against:1. The State of the Netherlands (Ministry of General Affairs), with its seat atThe HagueRespondentAttorney: G.J.H. Houtzagers2. the organisation with legal personality The United Nations, having its seat in New York City(NY 10017), New York, United States of AmericaRespondentNot entering an appearance and leave to proceed in default of appearance having beengranted© Van Diepen Van der Kroef Advocaten page 2 of 99

assertions and allegations made at first instance, which assertions should be deemed to behere expressly repeated and inserted.6. The District Court gave judgment on 10 July 2008. In that judgment the Court – in summary –declared itself as being without jurisdiction to hear the claims brought against the UnitedNations. The Association et al. cannot agree with that judgment and will advance against itthe grounds of appeal set out below. In summary, the grounds of appeal are that in itsjudgment of 10 July 2008 the District Court incorrectly reproduced the claims of theAssociation et al., incorrectly reproduced the argument of the Association et al. and erredat law regarding a number of several legal issues. Furthermore, the Court failed on anumber of points to give any, alternatively sufficient, grounds for its decision and the Courthas, finally, made an incorrect decison that ought to be set aside in this appeal.7. The judgment of the District Court brings to a conclusion that part of the dispute thatrelates to the claim instituted against the United Nations. The judgment must becharacterised in that context as a final judgment, against which an appeal may be broughtimmediately. The main proceedings at first instance are suspended by unanimous decision ofthe parties appearing and referred to the suspended cause list until final decision is given onthe jurisdiction of the Court to hear the claims brought against the United Nations.8. The Association et al. will submit the complete case file on the occasion of the submissionfor judgment or argument. In respect of the proceedings at first instance that case filecomprises:- the writ of summons dated 4 June 2007, with accompanying documents relating to theservice on the United Nations;- a letter from the State of the Netherlands to the Court, dated 17 September 2007, with asattachment the letter from the United Nations to the Permanent Representative of theNetherlands to the United Nations, dated 17 August 2007;- a letter from the Association et al. to the Court, dated 20 September 2007;- the official Advisory Opinion of the Public Prosecutions Department under Article 44 CCPr,dated 7 November 2007;- the leave to proceed in default of appearance given against the United Nations, dated 7November 2007;© Van Diepen Van der Kroef Advocaten page 5 of 99

- the motion by the State of the Netherlands in interim proceedings, dated 12 December2007;- the statement of defence presented by the Association et al., dated 6 February 2008;- memorandum of oral pleadings of the attorneys appearing for the State of theNetherlands, dated 18 June 2008;- verbal explanation by the Public Prosecutions Department, dated 18 June 2008;- memorandum of oral pleadings of the attorneys appearing for the Association et al., dated18 June 2008;- contested judgment, dated 10 July 2008;9. By filing writs of summons dated 7 October 2008 the Association et al. have appealed in duetime from the judgment of 10 July 2008. Furthermore, the notice of appeal was sent bycourier to the United Nations. Service on the United Nations has been confirmed to theAssociation et al. The record of service and the sending by courier of the (translated intoEnglish version of) the judgment of the District Court of 10 July 2008 constitutes moreoverpresentation to the United Nations for inspection.Grounds of appeal10. The grounds of appeal set out below are lodged against the judgment. The Association et al.will in setting out the grounds of appeal maintain as far as possible the order applied by theDistrict Court in the contested judgment.Ground of appeal 111. The District Court incorrectly reproduced the claim of the Association et al. under legalconsideration 2.1 under point (5) as follows:‘orders the UN and the State, jointly and severally, to pay to Fejzi! et al. an advance in theamount of " 10,000 each on the compensation referred to under (4).’Explanation12. The writ of summons dated 4 June 2007 states on page 203 under point (5) of the petition:© Van Diepen Van der Kroef Advocaten page 6 of 99

‘to hold the United Nations and the State of the Netherlands jointly and severally liable topay Plaintiff under 1 through 10 an advance of EUR 25,000 per person of the compensationto be awarded, as claimed under point 4 of the petition;’13. Contrary to what the District Court thought, it was not an advance of EUR 10,000 on thecompensation claimed but rather an advance of EUR 25,000. Even though the determinationby the District Court is not a determinative factor in the grounds for or the decision onjurisdiction, the Association et al. self-evidently has an interest in not being bound by thisincorrect determination by the District Court.Ground of appeal 214. The District Court has incorrectly summarised the defence of the Association et al. underlegal consideration 3.4 as follows:‘(1) Only the UN itself can, if it appeared, invoke its possible immunity. Since itdeliberately failed to appear, an assessment of the defence of lack of jurisdiction is out oforder. The motions by the State are devious tricks, now that the State is expected to arguein the main proceedings that not the State but the UN is responsible for the eventsreferred to in the main proceedings. Legally, humanly and morally this is unacceptable.’Continuing on from this rendition the District Court incorrectly held under legalconsideration 5.6 that:‘The State’s own interest in its interim motion follows particularly from its obligationunder international law by virtue of article 105 paragraph 1 of the UN Charter. Under thistreaty the State has bound itself to safeguard as much as possible the immunity laid downin the Charter, irrespective of how far it extends. Pleading this immunity in proceedingsbefore a national court of law at least falls within the bounds of possibility. It is notimportant in this regard that the State itself is also a defendant, in this case alongside theUN. Now that the State is a party to the proceedings in its own right, it does not need tofollow the – in principle much more cumbersome – course of an interim motion of thirdpartyintervention. Neither does the possibility of which the State now makes use prejudicethe fact that in our system of law there are also other options for (organs of) the State toobtain a Court’s ruling on its jurisdiction regarding a non-appearing defendant. All these© Van Diepen Van der Kroef Advocaten page 7 of 99

options exist side by side and do not exclude each other. The diversity of the possibilities isan expression of the State’s aforesaid obligation under international law rather than thatit impairs it. In view of all this the Court does not adopt the assertion by the Association etal. that the State’s adopted course of action in the interim proceedings is procedurallyunacceptable. Neither can it be said that this course of action is humanly or morallyunacceptable to such a degree that legal consequences should be attached.’Explanation of ground of appeal 215. It is necessary to comment on the cited legal grounds. First, the District Court reviews adefence of the Association et al. that was not put forward in those terms. Consequently, theDistrict Court fails to consider an essential defence of the Association et al. Secondly, thereview by the District Court under legal consideration 5.6. is legally erroneous, whatevermight have been intended by the assertion of the Association et al. The Association et al.will deal with this second point in a separate ground of appeal (ground of appeal 5).16. The Association et al. refers to point 6 in its statement of defence in the incidents:‘The State of the Netherlands and the UN have since 1995 shifted the responsibility for thefall of the Srebrenica Safe Area to the other. If it should continue to be held that immunityattaches to the UN, it is to be expected that the State of the Netherlands in the mainproceedings will assert that it is not the State of the Netherlands that is responsible butthat it is the UN that is responsibility for the events before, during and after the fall ofSrebrenica. That follows, for example, from the letter that the Netherlands Ambassador toBosnia sent in the summer of 2004 to the Bosnian attorneys of the Mothers of Srebrenica.The State of the Netherlands also did that in the case of H. Nuhanovic et al. against theState of the Netherlands (District Court The Hague, cause-list numbers 06-1671 and 06-1672), cases that likewise raised the issue of the conduct of Dutchbat in Srebrenica. That isthe actual interest of the State of the Netherlands in the motions and thus not the treatyobligations outlined by the State of the Netherlands. (…)’17. The Association et al. pointed out also under point 28 of the Memorandum of Pleadings inthe incidents that the State of the Netherlands had every interest in keeping the UN outsidethese proceedings rather than it was so committed to its international obligations. Indeed,should immunity be accorded to the UN immunity in this matter then the Association et al.© Van Diepen Van der Kroef Advocaten page 8 of 99

about its jurisdiction in the case against the respondent is dismissed. Granting leave toproceed in default of appearance just means that the Court has established that the nonappearingdefendant was summoned in the manner prescribed by law logically precedes theassessment of the (international) jurisdiction of the Court with regard to the action againstthis defendant, for it is possible that the defendant wishes to submit his views on this tothe Court, and then it must first be established whether he was summoned in accordancewith the law if he failed to appear. A Court may render a decision about its jurisdiction atthe same time as granting leave to proceed in default of appearance, but does not have todo so. In this case this was not done; on 7 November 2007 the Court just gave a decision onthe leave to proceed in default of appearance as requested by the Association et al. butnot on its own jurisdiction in the case against the UN. In the extract of the record of thecause-list session in question, of which the parties appearing are cognisant, no mention ismade of (any assessment by the Court, ex officio or on application, concenrning) theCourt’s jurisdiction or the UN’s immunity.’Explanation of ground of appeal 320. The Association et al. under point 24 of its statement of defence argued at first instancethat the issue of jurisdiction was already a fait accompli. Leave to proceed in default ofappearance against the UN had already been granted on 7 November 2007.Leave to proceed in default of appearance against a non-appearing internationalorganisation can only be granted following an ex officio review by the Court of itsinternational jurisdiction. In procedural law terms granting leave to proceed in default ofappearance also entails acceptance of the status of the defendant as a party to theproceedings (see J. Spiegel, Vreemde staten voor de Nederlandse rechter, thesis 2001, page31).21. If the immunity of the UN were, however, to be absolute (which is the import of theargument of the State of the Netherlands preceding the granting of leave to proceed indefault of appearance, as suggested by letter dated 17 September 2007, a position repeatedwith extensive supporting argument in the letter of the Public Prosecutions Department,dated 2 November 2007, which letter was also submitted to the District Court under Article44 CCPr prior to the granting of leave to proceed in default of appearance), the cause listjudge should have ruled that no jurisdiction accrued to the Netherlands Court and shouldhave declared the Association et al. non-suited in their claims against the UN.© Van Diepen Van der Kroef Advocaten page 10 of 99

22. The Public Prosecutions Department, in the Advisory Opinion dated 2 November 2007 underArticle 44 CCPr preceding the granting of leave to proceed in default of appearance,referred to the letter of the UN dated 17 August 2007 to the Permanent Representative ofthe Netherlands to the UN. For that matter, the State of the Netherlands had also referredthe District Court to that letter in its letter dated 17 September 2007. The PublicProsecutions Department (see page 2, paragraph 5) stated:‘According to the letter dated 17 August 2007 the UN, precisely in respect of the immunityfrom jurisdiction to which it is entitled, did not appear before the Netherlands Court. Thisis in accordance with the settled practice of the UN.’This is entirely irreconcilable with the judgment of the District Court under legalconsideration 5.2, that:‘it is possible that the defendant wishes to submit his views on this to the Court, and thenit must first be established whether he was summoned in accordance with the law if hefailed to appear.’It was beyond any doubt, given the letter to the Permanent Representative to the UN, theletter of the State of the Netherlands to the District Court and the Advisory Opinion of thePublic Prosecutions Department under Article 44 CCPr, that the UN would not appear. Thethought that the UN might possibly appear in the proceedings to make known its view on theimmunity issue is incomprehensible and should be dismissed.23. The judgment of the District Court that the issue of leave to proceed in default ofappearance ‘logically’ precedes the judgment of the Court should likewise be dismissed.That is anything but logical and even erroneous given:1. the correspondence with the cause-list judge and the Advisory Opinion of the PublicProsecutions Department under Article 44 CCPr;2. the literature cited which demonstrates that leave to proceed in default ofappearance against a non-appearing international organisation can be granted onlyfollowing an ex officio review by the Court of its international jurisdiction. Inprocedural law terms granting leave to proceed in default of appearance also entails© Van Diepen Van der Kroef Advocaten page 11 of 99

acceptance of the status of the defendant as a party to the proceedings (see J.Spiegel, Vreemde states voor the Netherlands Court, thesis 2001, page 31);3. the logical order of legal reasoning. It is not possible to grant leave to proceed indefault of appearance where the jurisdiction to do so is absent.24. Even the State of the Netherlands recognises under points 3.2 et seq. of the motion at firstinstance that an ex officio review of the issue of jurisdiction must take place (against a nonappearinginternational organisation). The result of that ex officio review is given with thegrant of leave to proceed in default of appearance, which is a correct result, in the view ofthe Association et al. Given the above the State of the Netherlands should have beendeclared non-suited in its interim motion, alternatively that motion should have beendismissed.25. Furthermore, it is incomprehensible that the District Court has held that the Court, ingranting leave to proceed in default of appearance, did not give a judgment on itsjurisdiction. That consideration is at odds with the correspondence cited above on the issueof jurisdiction, the settled practice of the UN and known to the District Court regardingappearance in legal proceedings, the cited literature, as well as the incomprehensibleassumption that a decision on granting leave to proceed in default of appearance could begiven where no jurisdiction exists. The fact that a decision is given regarding leave toproceed in default of appearance does not entail – contrary to what the District Court held –that no decision is given on the Court’s jurisdiction.The reference to the docket (which lacks any grounds stated for a decision regardingjurisdiction) is in this respect insufficient without further grounds being given, and they areabsent. The docket lacks any space for such grounds regarding the issue of jurisdiction. Asstated above, leave to proceed in default of appearance implies Jurisdiction. In thisconnection the Association et al. points out that the docket also contains no considerationsregarding, for example, the validity of the writ of summons. The grant of leave to proceedin default of appearance here says enough. At the very least it has the semblance that theDistrict Court was guilty of following a line of reasoning to a result, which is insupportable.Ground of appeal 426. The District Court has reasoned erroneously under legal consideration 5.3 of the contestedjudgment.© Van Diepen Van der Kroef Advocaten page 12 of 99

Explanation of ground of appeal 427. Parties have disputed at first instance whether the State of the Netherlands possessed asufficient interest in the claims brought by it. The State of the Netherlands invoked theBailiffs Act in aid of that interest. The District Court correctly considered that the BailiffsAct played no role in the review of the interest of the State of the Netherlands, but failed todraw the conclusion from that determination. The keystone to the reasoning should havebeen that the interest asserted by the State of the Netherlands did not flow from the BailiffsAct, alternatively that such interest did not exist.28. The State of the Netherlands in its motion in interim proceedings gave quite some weight tothe content and origins of the Bailiffs Act, in particular to Article 3a of that Act. The Stateof the Netherlands presented that argument in order to demonstrate that it had an owninterest in the interim proceedings. However, it applied here also that the State of theNetherlands had already presented its point of view by means of the Advisory Opinion of thePublic Prosecutor’s Department under Article 44 CCPr, prior to the grant of leave to proceedin default of appearance. In the interim statement of defence the Association et al.examined in some detail the impropriety of the arguments of the State of the Netherlandsderived from Article 3a of the Bailiffs Act. The Association et al. addresses those argumentsbelow.29. Article 3a paragraph 1 Bailiffs Act lays down that the bailiff shall notify the Minister wherehe receives a request to perform an official act that might possibly be in breach of theinternational obligations of the State of the Netherlands. In such event, the Minister maydeclare to the process server that such official act would be, or the official act alreadyperformed in the course of his duties is, in breach of the international obligations of theState of the Netherlands (Article 3a paragraph 2). Such declaration shall be reasoned andpublished. The declaration and notification shall be published in the Official Gazette(Article 3a paragraph 4). That official act can no longer be legally performed from themoment of the declaration (Article 3a paragraph 5) and where the official act consists of theservice of a writ of summons or notice thereof such official act is a nullity (Article 3aparagraph 6).30. The Association et al. failed to see already at first instance how Article 3a Bailiffs Act in thepresent proceedings constitutes any bar to the jurisdiction of the Court or could otherwise© Van Diepen Van der Kroef Advocaten page 13 of 99

have any consequences for the validity of the writ of summons. After all, the process serverwho served the writ of summons on the UN saw no (possible) conflict with the internationalobligations of the State of the Netherlands, any more than the Minister issued anydeclaration to the process server. As follows also from the Memorandum of Explanation toArticle 3a (TK vergaderjaar 1992-1993, 23 081, number 3, page 4) cited by the State of theNetherlands, the writ of summons was validly served and it thus remains so.31. Article 3a Bailiffs Act deals besides in particular with international obligations that relate (incontrast to the present proceedings) to the immunity of foreign states (see Memorandum ofExplanation to Article 3a, TK (Second Chamber) Assembly Year 1992-1993, 23 081, number3, page 1):‘For several years there has been renewed interest in the question how to preventembarrassment to the State of the Netherlands by civil proceedings being brought in theNetherlands against another state or attachment being levied on its property in a situationwhere such would be in breach of the international obligation of the State.’(…)‘In discussing this problematic there is a case to be made for the drawing of a distinctionbetween, on the one hand, the question whether, and, if yes, to what extent immunityfrom jurisdiction in the Netherlands attaches to the foreign power, and, on the other, thequestion whether, and, if yes, to what extent such an immunity also attaches in the area ofthe enforcement of judgments.’32. The process server correctly judged that no situation arose covered by Article 3a of theBailiffs Act. Consequently, it is for the Court to consider whether it has jurisdiction. Thelegal interest raised by the viewpoint of the State of the Netherlands has already beensufficiently addressed by the Public Prosecutor’s Department under Article 44 CCPr, prior tothe grant of leave to proceed in default of appearance.33. The State of the Netherlands has stated that it has sufficient interest in the motions. Tothat end the State of the Netherlands referred to the Bailiffs Act. The Association et al. hasdemonstrated the incorrectness of the arguments of the State of the Netherlands and has© Van Diepen Van der Kroef Advocaten page 14 of 99

eferred to the fact that the process server also saw no possible conflict with theinternational obligations of the State of the Netherlands. All in all, no autonomous(procedural) interest in these proceedings can therefore be derived from the Bailiffs Act.34. The District Court came to an erroneous judgment in legal consideration 5.3. The DistrictCourt failed to dismiss the assertion of the State of the Netherlands that in the presentproceedings it has sufficient interest in the motions on the ground of the Bailiffs Act. TheDistrict Court reviewed merely a very limited part of the defence of the Association et al.and concluded that the inapplicability of Article 3a Bailiffs Act was without consequence forthe decision of the Court on the issue of its jurisdiction. The District Court should – asalready said – have held that Article 3a Bailiffs Act in the present proceedings established nointerest of the State of the Netherlands in respect of the motions.Ground of appeal 535. The District Court incorrectly considered under legal consideration 5.5 that:‘It should be noted that the defences put forward by the Association et al., summarized in3.4 under (1) and (2) of this judgment, are not in point. The State has a judicially relevantinterest of its own in its motion that the Court has no jurisdiction in the case against its codefendant.This is without prejudice to the fact that the Public Prosecutions Department already drewthe Court’s attention to this matter of jurisdiction in its advisory opinion of 7 November2007. Although the Public Prosecutions Department is an organ of the State it is not to beidentified with the State. In the execution of its duties, the Public ProsecutionsDepartment in this field too has a certain degree of independence vis-à-vis the Minister ofJustice, laid down in detail in the Judiciary (Organization) Act, as well as a responsibilityof its own laid down in other statutes. Apart from that, the State, as a party to theproceedings, has a right of its own with further statutory powers attached to make use ofprocedural possibilities. The Public Prosecutions Department does not have the possibilityto appeal if in a civil action it has given an advisory opinion by virtue of Article 44 of theCode of Civil Procedure. In law, its opinion is just an advice of an authority that is not aparty to the proceedings. To a party to the proceedings on the other hand, such as theState in this case, the remedy of appeal is usually available if an action instituted by it (inthis case: the State) is dismissed.’© Van Diepen Van der Kroef Advocaten page 15 of 99

36. Consequently, the District Court erroneously held under legal consideration 5.6 that:‘The State’s own interest in its interim motion follows particularly from its obligationunder international law by virtue of article 105 paragraph 1 of the UN Charter. Under thistreaty the State has bound itself to safeguard as far as possible the immunity laid down inthe Charter irrespective of how far it extends. Pleading the immunity in proceedingsbefore a national court of law at least falls within the bounds of possibility. It is notimportant in this regard that the State itself is also a defendant, in this case alongside theUN. Now that the State is a party to the proceedings in its own right, it does not need tofollow the course of an interim motion for third-party intervention, in principle a muchmore cumbersome course. Neither does the possibility of which the State now makes useprejudice the fact that in our system of law there are also other options for (organs of) theState to obtain a ruling of the Court on its jurisdiction regarding a non-appearingdefendant All these options exist side by side and do not exclude each other. The diversityof possibilities is an expression the State’s aforesaid obligation under international lawrather than that it impairs it. In view of all this the Court does not accept the assertion bythe Association et al. that the State’s adopted course of action is unacceptable. Neithercan it be said that this course of action is humanly or morallly unacceptable to such adegree that legal consequences should be attached.’37. Furthermore, the District Court has erroneously considered under legal consideration 5.7that:‘In this incident the State’s possible defence regarding the action brought against it is notin issue. Anything the Association et al. argued or presumed in this respect therefore isnow left undiscussed.’38. Finally, the District Court erroneously considered and held under legal consideration 5.8that:‘The assertion by the Association et al. that only the UN itself could have invoked immunityit it had appeared fails already by virtue of the State’s own interest established here.’Explanation to ground of appeal 5© Van Diepen Van der Kroef Advocaten page 16 of 99

No legal relevant interest of the State of the Netherlands39. The Association et al. asserts above all that the real interest of the State of the Netherlandsin its interim motion is that the State of the Netherlands wishes to conceal its own failingsin respect of the fall of Srebrenica and turn liability away from itself. For that reason theState of the Netherlands wishes to keep the UN out of the proceedings and obtain a ruling,so that the State of the Netherlands can continue to shift the blame onto the shoulders ofthe UN, just as it has done since 1995. Moreover, keeping the UN out of the proceedingswould seriously prejudice arriving at the truth. Every consideration that leads to thejudgment that the State of the Netherlands has another – legally to be respected - interestdisguises the real interest.40. The order of precedence that the District Court employed for the review of the questionwhether the State of the Netherlands possessed an own legally relevant interest in itsmotion for a declaration of lack of jurisdiction by the District Court in the case against itsco-defendant, the UN (see legal consideration 5.6), and the question whether any possibleobligation had not already been discharged by the State of the Netherlands by virtue of theofficial Advisory Opinion under Article 44 CCPr of the Public Prosecutor’s Department (seelegal consideration 5.5), is illogical. The first matter that needs to be established is whetheran own international obligation of the State of the Netherlands exists. If that is the case,then it can be established whether the manner in which that was interpreted by the letterof the State of the Netherlands dated 17 September 2007 to the cause list judge and theAdvisory Opinion of the Public Prosecutor’s Department under Article 44 CCPr still leavesroom for a separate interim motion. The Association et al. will first deal with the absence ofan own interest and then show that even should such an own interest exist did the letter ofthe State of the Netherlands dated 17 September 2007 to the cause list judge and theAdvisory Opinion of the Public Prosecutor’s Department under Article 44 CCPr give sufficientinterpretation thereto.Interest does not arise from Article 105 paragraph 1 of the UN Charter41. The District Court held in the first sentence of legal consideration 5.6 that the own interestof the State of the Netherlands in its interim motion followed particularly from its© Van Diepen Van der Kroef Advocaten page 17 of 99

international obligation under Article 105 paragraph 1 of the UN Charter. That is anerroneous assumption. Article 105 paragraph 1 of the UN Charter states:‘The organization shall enjoy in the territory of each of its Members such privileges andimmunities as are necessary for the fulfilment of its purposes.’An international obligation on the Member States does not derive without more from thiscited article. Without further grounds being stated, which are absent, the own interest ofthe State of the Netherlands does not derive from Article 105 paragraph 1 of the UNCharter. Article 105 paragraph 1 of the UN Charter creates no own interest of the State ofthe Netherlands any more than it includes an obligation on the State of the Netherlands toput in place or create any provision of procedural law.42. The District Court also failed to understand that Article 105 paragraph 1 of the UN Charterrestricted the immunity of the UN to immunity that is necessary for ‘the fulfilment of itspurposes’. The Association et al. have repeatedly argued that the immunity of the UN is notabsolute and should be subject to review. The District Court gave no evidence of such areview in its judgment. Even more to the point, as will be dealt with below in a separateground of appeal, the District Court held (for example under legal considerations 5.13 and5.22) that the UN enjoyed absolute immunity.43. The Association et al. notes moreover that the State of the Netherlands in its motion ininterim proceedings under point 3.2.6 has stated that the law, alternatively theinternational obligation of the State of the Netherlands itself to institute a motion derivesfrom Section 34 (of the Convention on the Privileges and Immunities of the UN, 13 February1946, hereafter: the Convention). The District Court did not cite that Article given that itdeemed the interest to exist (apparently) on other grounds. The Association et al. will dealwith this assertion of the State of the Netherlands for the sake of completeness.44. The relevant Article provides an opportunity, not an international obligation. Section 34states as follows:‘It is understood that, when an instrument of accession is deposited on behalf of anyMember, the Member will be in the position under its own law to give effect to the termsof this Convention.’© Van Diepen Van der Kroef Advocaten page 18 of 99

The Article envisages a situation in which a State becomes a Member of the UN. That isabsolutely not the case in the present proceedings. The reference to the own law of theState in question entails also that if an obligation relevant to these proceedings were toarise under Section 34 for the State of the Netherlands then that also means that theinternational treaties applicable under the law of the Netherlands are also here applicablein these proceedings.One can think in particular of Article 6 of the European Convention for the Protection ofHuman Rights and Fundamental Freedoms of 4 November 1950 (ECHR), Article 10 of theUniversal Declaration of Human Rights of 10 December 1948 (UDHM) and Article 14 of theInternational Covenant on Civil and Political Rights of 16 December 1966 (IVBPR), as well asthe Convention on the Prevention and Punishment of Genocide (Genocide Convention). Therights that arise under these provisions apply absolutely and universally and permanently.These rights are not subject to restrictions, in contrast to what by definition applies to theimmunity of the UN. In the originating writ of summons the Association et al. extensively setout that should the District Court deem itself to be without jurisdiction to hear the claim,the rights of the Association et al. that arise under the provisions cited above would beviolated.45. The conclusion to be drawn from the above is that the State of the Netherlands is under nointernational obligation to institute any motion in interim proceedings and thereforepossesses no interest.That is even more cogent as the UN are themselves co-defendant and can advance withouthindrance their own interests if any. Should any international obligation exist on the Stateof the Netherlands to invoke the immunity of the UN, such obligation is restricted bynational legislation, including the international treaties cited, which have direct effect.Interest already sufficiently safeguarded by Article 44 CCPr46. The following part of this ground of appeal is directed against legal consideration 5.5 inwhich the District Court mainfested an erroneous view of Article 44 CCPr in general and inthese proceedings in particular.47. The District Court held that it would not detract from the assumed interest underinternational law of the State of the Netherlands that the Public Prosecutor’s Department© Van Diepen Van der Kroef Advocaten page 19 of 99

had already issued an Advisory Opinion under Article 44 CCPr, prior to the granting of leaveto proceed in default of appearance. It is, however, certainly important that the PublicProsecutor’s Department did issue an Advisory Opinion under Article 44 CCPr. The issue ofthe immunity was brought to the attention of the District Court by the Advisory Opinion.There is no right or interest in bringing the same issue for a second time to the attention ofthe District Court.48. Furthermore, the District Court held that the Public Prosecutor’s Department was not to beidentified with the State of the Netherlands. That is in the first place factually erroneous.The position of the Public Prosecutor’s Department was literally identical with the positionof the State of the Netherlands. Where normally the Public Prosecutor’s Department aims toissue an impartial, independent legal advisory opinion in judical proceedings, the AdvisoryOpinion in the present case merely reproduced the position of the State of the Netherlands.The Public Prosecutor’s Department totally ignored all the arguments advanced against theposition of the State of the Netherlands, arguments extensively advanced by the Associationet al. Secondly, the Public Prosecutor’s Department is both legally and actually to beidentified with the State of the Netherlands. A State always has to be represented. If thereasoning of the District Court were to be followed, the State of the Netherlands wouldnever be able to adopt a position or be able to perform a legal act or institute any legalproceedings; the State after all always has to be represented and thus there is always aquestion of attribution to the State of such acts by the representative. That must apply herealso.At the very least, given the very great correspondence between the positions adopted in theAdvisory Opinion of the Public Prosecutor’s Department, on the one hand, and the motion ofthe State of the Netherlands, on the other, there is the appearance of the exercise of thepowers within the meaning of Article 127 of the Judiciary (Organization) Act. That Articlelays down that the Minister of Justice is empowered to issue general and special directionsas to the exercise of the duties and powers of the Public Prosecutor’s Department. It isentirely implausible that the Public Prosecutor’s Department here acted independently,without instruction by the State of the Netherlands. Moreover, it emerged at the hearing of18 June 2008 that the Public Prosecutor’s Department had consulted with the StateAdvocate prior to the hearing. The Association et al. was not informed of the fact that thePublic Prosecutor’s Department would appear at the hearing. The Association et al. offers tosupply the proof of its assertions through a hearing of the Public Prosecutors involved at the© Van Diepen Van der Kroef Advocaten page 20 of 99

The Hague District Public Prosecutor’s Department’s Office, Mrs E.I. Schuier and Mr. M.R.B.Mos, as well as the hearing of the Minister of Justice, Mr. E.M.H. Hirsch Ballin.49. Furthermore, State organs are always identified with the State. The Public Prosecutor’sDepartment is the State of the Netherlands when it involves the upholding of the criminallegal system and the other duties imposed by statute (see Article 124 Judiciary(Organization) Act), by which is also to be understood the duty to issue an advisory opinionunder Article 44 CCPr. Contrary to what the Association et al. would deem appropriate, theState of the Netherlands in the person of the Public Prosecutor’s Department has not takenan independent position, an independent position that in the view of the Association et al.for that matter could have been expected also from the State of the Netherlands as a partyto the proceedings. That is incidentally also again raised by the Association et al. inrejoinder. Both the Public Prosecutor’s Department and the State of the Netherlands havestrongly and partially allowed themselves to be influenced by their evident desire to keepthe UN out of the proceedings at all cost, in order to be able to confine the resonsibility forthe drama of Srebrenica to the UN.50. Where the District Court considers that the Public Prosecutor’s Department has anindividual, narrowly circumscribed degree of autonomy in relation to the Minister of Justice,that is true in itself. What is material in this case is that there is no question of autonomy.To put it yet more strongly, it is extremely likely that the power to issue directions wasexercised. The extremely partial Advisory Opinion of the Public Prosecutor’s Department isnot otherwise open to interpretation. Moreover, it is precisely in the Judiciary(Organization) Act and in particular in Article 124 Judiciary (Organization) Act, that thePublic Prosecutor’s Department is charged with carrying out the duty of the State of theNetherlands in this legal area. That Article makes clear the supervisory role of the State ofthe Netherlands over the administration of justice, which role is assigned to the PublicProsecutor’s Department.That supervisory role for the State of the Netherlands in the office of the PublicProsecutor’s Department derives also from Articles 42 through 44 CCPr.51. The judgment of the District Court that an organ of the State must not be identified withthe State would for that matter also mean that organs of the UN – such as Dutchbat – oughtnot to be identified with the UN. That can obviously not be correct. The Association et al.© Van Diepen Van der Kroef Advocaten page 21 of 99

cannot perceive any legal construction other than identification that could here beinvolved.52. The consideration of the District Court that the State of the Netherlands as party to theproceedings has other procedural powers than the Public Prosecutor’s Department is herenot relevant. In fact the District Court accorded the State of the Netherlands many moreprocedural powers than it would an ordinary party. The issue here is whether the State ofthe Netherlands has an international obligation and whether that gives rise to a sufficientinterest. It was discussed above already that there did not exist an obligation to leave nomeans untried in order to guarantee the immunity of the UN (and certainly not by way ofoverriding the most important treaties) by the deployment of procedural means. That thePublic Prosecutor’s Department does not have the possibility of going on appeal may be truein itself but there is no obstacle to the Public Prosecutor’s Department again issuing anadvisory opinion under Article 44 CCPr in a case on appeal. All of this must be viewedagainst the background that the UN itself choose not to enter an appearance. Thepostulated interest of the State of the Netherlands is and remains an interest that isinferred from that of the UN. The State of the Netherlands would have an internationalobligation, while the UN (in whose interests the obligation would have been created)chooses not to exercise their rights. Under those circumstances nothing should stand in theway of the Court’s jurisdiction.53. The conclusion of ground of appeal 5 is that the State of the Netherlands has no interest tobe upheld at law. Bringing the interim motions has impeded the establishment of the truthand the State of the Netherlands has a party upon whose shoulders it can heap the blamewithout any adverse consequence. The District Court consequently failed to understandunder legal consideration 5.7 that the possible defence open to the State of the Netherlandsagainst the claim against it should not have been in issue. That defence (that has beenadvanced since 1995, namely, that it was not the Netherlands but the UN that wasresponsible), gives insight into the actual interest of the State of the Netherlands. The Stateof the Netherlands intended in the interim proceedings only to advance that actual interest.These are not noble principles derived from international law but exclusively political endsdesigned to shift blame and impede truth-finding in order to prevent damage to the imageof the State of the Netherlands and liability for compensation.© Van Diepen Van der Kroef Advocaten page 22 of 99

54. The District Court is evidently discomfitted with the earlier decision regarding default ofappearance, or at least that a decision was given that in fact cannot be remedied in thesame court. The Advisory Opinion of the Public Prosecutor’s Department under Article 44CCPr was, after all, given prior to the grant of leave to proceed in default of appearance.Moreover, the State of the Netherlands had then already given a concurrent view by letterdated 17 September 2007. Cognisant of that Advisory Opinion and that letter the Courtgranted leave to proceed in default of appearance and was not persuaded by the argumentsof the State of the Netherlands, whether or not advanced through the Public Prosecutor’sDepartment. The District Court manifestly held that it had jurisdiction. The District Courtpossibly wished to resolve this by acting as though the Public Prosecutor’s Department andthe State of the Netherlands could not be identified with each other. The District Courtagain decided on the same viewpoint, but with a result that is irreconcilable with the grantof leave to proceed in default of appearance. In this way the District Court has done whatthe UN should have done, namely, appear in court so as to prevent judgment by default andinvoke immunity. Such a sympathetic attitude with respect to a non-appearing party (theUnited Nations) compared with to a party to the proceedings that did appear (the State ofthe Netherlands) is unknown. In the view of the Association et al. that is procedurally anunacceptable state of affairs. No other party to the proceedings is assisted in such a mannerby a court after leave to proceed in default of appearance has been granted. Failure toappear before the court must be cured by appearance by the party against whom leave toproceed in default of appearance was granted. Deviating from the normal rules in favour ofthe State of the Netherlands and the UN without any legal basis compromises the rights ofthe Association et al. to a fair trial.55. In anticipation of the ground of appeal against legal consideration 5.14 that has yet to beset out the Association et al. already notes that a possible background for that attitude is tobe found in the judgment of the District Court under legal consideration 5.14 (finalsentence):‘It is very likely that more far-reaching testing will have huge consequences for theSecurity Council’s decision-making on similar peace-keeping missions.’The District Court indicates with its judgment that its decision was based in large part onpolitical considerations.© Van Diepen Van der Kroef Advocaten page 23 of 99

very dissimilar to each other, there is no hierarchical relationship; the one type does notextend “further”, in general terms, and is not more “important” than the other. Decisivefor the establishment of meaning of norms of immunity of international institutions is whatthe parties to the treaty agreed in the founding treaty in question, and having due regardto articles 31 and 32 of the Vienna Convention on Treaties. With regard to the UN it is truethat it is indisputably the most important international institution in the internationalcommunity, with an almost universal membership among states.’And erroneously considered under legal consideration 5.12 that:‘The allegations on which the Association et al. have based their actions against the UNrelate to acts (and omissions) in the implementation of the peace-keeping mission inquestion, which is based on resolutions by the UN Security Council by virtue of theaforesaid Chapter VII of the UN Charter. The allegedly culpable conduct of the UN fallwithin the functional scope of this organization. It is particularly for acts within thisframework that immunity from legal process is intended.’And further erroneously considered under legal consideration 5.13 that:‘The startingpoint is that the UN itself, according to its letter to its letter to the DutchPermanent Representative to the UN, referred to in 1.1. and dated 17 August 2007,expressly invokes its immunity. As far as the Court is aware the UN to date has alwaysinvoked its immunity with regard to actions within the functional framework just referredto, and no exceptions have ever been made in practice. The Association et al. have notadvanced anything from which the opposite can follow. On the basis of all of this theDistrict Court concludes that in international-law practice the absolute immunity of the UNis the norm and is respected.’Explanation to ground of appeal 7Introduction60. Ground of appeal 7 relates to the immunity of the UN. The Association et al. notes thefollowing by way of introduction. In this case there is no question of state immunity, ratherof immunity of an international organisation. That immunity is not absolute and is limited by© Van Diepen Van der Kroef Advocaten page 25 of 99

functional necessity. In that context the Association et al. will examine the judgment in theManderlier case. The Association et al. will also raise the issue that with reference to theliterature and the Report of the Advisory Commission on Issues arising under PublicInternational Law (CAVV) that given the functional character of the immunity of the UN theright of access to the court weighs more heavily than immunity. The basis for the immunityof the UN is Article 105 paragraph 1 of the UN Charter. That Article confines immunity towhat is necessary for the fulfilment of purposes. Immunity is thus functionally determinedand is not itself an objective. Given the Convention on Privileges and Immunities of 13February 1946, which derives from the UN Charter, the UN – to the extent that it isestablished that there exists a functional necessity for immunity – should have waived itsimmunity. The Association et al. will address further in the context of this ground of appealthat the Convention prescribes access to the court in order to be able to bring proceedingsagainst the UN (Section 29). The existence of that section demonstrates that an absoluteimmunity was never intended by the Member States and was never created. Furthermore,the substance and import of the Vienna Convention on Treaties is entirely different to thatwhich the District Court has ascribed to it. In the context of discussing that treaty theAssociation et al. will cite foreign literature on the incorrectness and injustice of anabsolute immunity. Subsequently in this ground of appeal attention will be paid to thelearned opinion of the International Court Justice (ICJ), which opinion expressly opens thepossibility not to accord immunity on the ground of ‘the most compelling reasons’. TheAssociation et al. will demonstrate that such compelling reasons exist pre-eminently in thiscase. Finally, the Association et al. will examine the fact that the District Court indicatedthat it took international practice in part as the criterion for its decision. The District Courtactually failed to understand that the practice is entirely different to its understanding ofit, even if such practice actually were to exist. Here the question can be raised whether‘the practice’ does justice to this case.61. The District Court erroneously, at least insufficiently, reviewed whether the necessity for afunctional immunity for the UN existed in this exceptional case. If and insofar as such areview was conducted the District Court erred at law regarding the functional immunity ofthe UN.© Van Diepen Van der Kroef Advocaten page 26 of 99

State immunity versus immunity of international organisations62. For a proper understanding of the immunity of the UN the Association et al. will brieflyrepeat its viewpoint thereon. A discussion arose during the motions at first instance on theimmunity of states and international organisations. That difference of opinion wasimportant as the State of the Netherlands supported its motions by appeal to literature andcaselaw that was exclusively concerned with the immunity of states. The District Court alsorecognized (more or less) that the immunity of states differed from that of internationalorganisations. The District Court proceeded in its considerations from a fundamentalmisunderstanding by holding that the one immunity did not go further than the other.Contrary to the situation with international organisations when a state is sued there isalways a court that has jurisdiction, namely, the court of the state that is being sued (seeC.G. van der Plas, De taak van de rechter en het IPR, Serie Onderneming en Recht, Kluwer2005, page 263 et seq.). For this reason the immunity of states does indeed extend ‘ingeneral terms’ much ‘further’ than that of international organisations. The caselaw on theimmunity of states is therefore of less utility in the present proceedings. The followingserves as explanation.State immunity63. The immunity of states from jurisdiction differs from the immunity of internationalorganisations both as respects scope as basis. The immunity of states is founded on theprinciple of sovereignty, independence and equality of states and derives from the maxim,‘par in parem non habet imperium’; among equals is no-one supreme (see for example:ECHR 21 November 2001, Al-Adsani/The United Kingdom, 35763/97, legal consideration 54;P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht, 9 e druk, 2002, page 67). Inpractical terms this means that the court of one state cannot give a judgment in a casewhere another state is a defendant. However, this principle is no longer accepted as validlaw in the event of serious violations of human rights. The Association et al. refers to thejudgment of the Italian national courts regarding the serious violations of human rightscommitted by German military forces during the Second World War. The German State,supported in this by the Italian State, on 23 December 2008 brought a case on this issuebefore the ICJ. Both of the states involved based themselves in that case on the positionthat the Italian courts lacked jurisdiction and that the German State could be summoned© Van Diepen Van der Kroef Advocaten page 27 of 99

only in Germany. It was not disputed that in any event the German court in such a casewould offer access to justice.64. Apart from that, it is also the case that in the course of time limitations have been placedon the immunity of states. Those limitations support the viewpoint of the Association et al.that in this case no immunity should be accorded. A leading case in which the immunity ofstates is restricted is the judgment of the Hoge Raad of 25 November 1994 (NJ 1995, 650;Marokko/De Trappenberg). The State of the Netherlands dealt extensively with this case inthe motions at first instance under numbers 3.2.9 and 3.2.10. The Association et al. refutedthose propositions under points 27 through 31 of its statement of defence in the incidentsand refers here to those assertions. The Association et al. repeats the conclusion drawntherefrom that the Hoge Raad in that case held that exceptions to state immunity werepossible and that in that case there was an issue of such an exception.Functional versus absolute immunity65. The Association et al. will deal further with the fact that the immunity of the UN is limitedto the functional necessity for it, known as functional immunity.The District Court virtually ignored a number of aspects thereof that are decisive for thiscase. The Association et al. will in succession deal with the legal rules that apply, thepractice of international law and the interpretation thereof in the light of the ViennaConvention on Treaties. The decision in Manderlier/UN (Tribunal Brussels, Manderlier/UN,11 May 1966, 45 International Law Reports 446) should have been of seminal influence. Thatdecision was extensively dealt with at first instance by the Association et al. It is certainlyremarkable that the District Court failed to address it at all. The Manderlier/UN Case is todate the only case on the immunity of the UN.The meagre caselaw that the District Court did advance as grounds for its decision did notconcern the UN. Perhaps the reason for that omission lies in the fact that nor did the Stateof the Netherlands deal with Manderlier/UN. The District Court, in the view of theAssociation et al., too sympathetically followed the interest pleaded by the State of theNetherlands.66. The case of Manderlier against the UN had similarities with as well as differences from thepresent proceedings. The Association et al. will now address these matters.© Van Diepen Van der Kroef Advocaten page 28 of 99

67. In the Manderlier Case the UN presented no defence on the merits but rather invokedimmunity under Article 105 of the UN Charter. The Tribunal in Brussels held that thecomplaint against the UN could not be heard due to the immunity of the UN. The Court ofAppeal in Brussels upheld this decision in a judgment of 15 September 1969 (69 ILR 139). Inthe proceedings between Manderlier and the UN Manderlier invoked, inter alia, Article 6 ofthe ECHR and Article 10 UDHR. The Court of Appeal held that the UDHR lacked the force oflegislation (see 45 ILR, page 451). The Tribunal in Brussels held further that only fourteenstates were parties to the convention (see 45 ILR, page 452). Insofar as the numericalargument was valid in 1966 that is certainly not the case now that there are presently 46countries that have acceded to the ECHR.68. The Tribunal in Brussels held in the Manderlier Case that a citizen has in principle a right ofaccess to the court. The Tribunal therefore recognized in that regard also the obligation ofthe UN that arises from Section 29 of the Convention on Privileges and Immunities of 13February 1946 and reached an important conclusion (see 45 ILR, page 451):‘In spite of this provision of the Declaration which the U.N. proclaimed on 10 December1948, the Organization has neglected to set up the courts which it was in fact alreadybound to create by Section 29 of the Convention [on Privileges and Immunities] of 13February 1946.’The UN were under the obligation to provide access to an independent court. The obligationwas not enforced only because it was assumed in 1966 that the UN still had the time tofulfill that obligation. It must be assumed that even the Belgian court, now some 40 yearslater, would no longer accept this failing by the UN.69. It follows from the Manderlier Case in the only decision in the international practice on theimmunity of the UN that a review was conducted of Article 6 ECHR, Article 14 ICCPR andSection 29 of the Convention. Such weighing of interests entails that immunity, contrary towhat the District Court, The Hague has held, is not absolute. Besides that, the decision inthe Manderlier Case demonstrated that international practice certainly proceeds on thebasis of an immunity that is limited in scope. In addition, the decision in the ManderlierCase confirms that the UN are not above the law and that the UN should itself have providedaccess to justice under Section 29 of the Convention. The Association et al. also points outthat the District Court totally ignored this Article in this context. Section 29 proves that the© Van Diepen Van der Kroef Advocaten page 29 of 99

immunity of the UN has no absolute character.70. The case of Manderlier against the UN is in another respect of an entirely different order tothe present proceedings. First, the Manderlier Case did not involve genocide, but ratherconcerned the destruction of property. Secondly, the judgment in the Manderlier Case wasgiven at a time when the UN was not yet involved on a large scale in international conflicts,as is now the case. It was unimaginable at that time that genocide could be committedunder the eyes of UN troops.71. The functional (and accordingly limited) character of the immunity of internationalorganisations is confirmed in the caselaw of the Court of Justice of the EuropeanCommunities (HvJ EG 13 July 1990 (Zwartveld), under legal consideration 19):‘Viewed in the light of these principles, the privileges and immunities accorded to theEuropean Communities by the protocol possess only an operational nature, to theextent that they are intended to prevent the Communities from being obstructed intheir operations and independence (…).’72. The UN has itself recognized the problematic of an alternative legal remedy. That is thereason why Section 29 of the Convention provides:‘The United Nations shall make provisions for appropriate modes of settlement of:(a) disputes arising out of contracts or other disputes of a private law character to whichthe United Nations is a party;’Despite the fact that this provision originated in 1946, the UN presently – more than sixtyyears later – have still not established any such legal remedy.73. The literature cited by the Association et al. at first instance remained undiscussed by theDistrict Court. That is incomprehensible given the fact that the District Court based itsgrounds (legal consideration 5.13) on the law in force and on international law practice. A.Reinisch also confirms that Belgium, as a party to the ECHR, should have offered Manderlieraccess to the Tribunal through the national court system and should not have upheld the© Van Diepen Van der Kroef Advocaten page 30 of 99

claim to immunity (A. Reinisch, International Organizations before National Courts, 2000,page 289). K. Wellens has expressed the same opinion (see: ‘Fragmentation of internationallaw and establishing an accountability regime for international organizations: The role ofthe judiciary in closing the gap’, in Michigan Journal of International Law, 11 May 2004).Wellens states, with reference also to Ch. Dominicé, that the right of access to the courtshould weigh more heavily than the interest of immunity (K. Wellens, op. cit., page 18):‘(…) access should prevail over immunity if no legal remedy is available.’74. The Advisory Commission on Issues arising under Public International Law (CAVV), theprincipal advisor of the Netherlands Government on issues of international law, shares theabove view that, in the absence of any other legal remedy, the right of access to the courtis more important than the claim to immunity. Thus, the CAVV writes in Article 4.5.2 of itsReport that the national court:‘(…) should proceed to a prima facie investigation in the light of international legal normsof the availibility of adequate internal legal remedies that are available within aninternational organisation to the aggrieved party. In the event of a negative result it isdesirable that national courts do not accord immunity and proceed to settlement of thedispute at hand.’75. It is meanwhile accepted that the immunity of international organisations, such as the UN, isno longer self-evident (see A. Reinisch, in R. Hofmann et al., Die Rechtskontrolle vonOrganen der stateengemeinschaft, 2007, page 43). There are thus increasing numbers ofnational courts that, in order to guarantee an effective protection of legal rights, do notrecognise the immunity of these organisations. Finally, the Association et al. refers in thecontext of legal practice and current law to the publication of Professor J.A. Frowein(Director Emeritus of the Max Planck Institute for Public International Law in Heidelberg andco-commentator of The Charter of the UN, B. Simma, a commentary, the leading work inthe legal field on the United Nations). In the Article “UN-Verwaltung gegenüber demIndividuum – legibus absolutus in: Allgemeines Verwaltungsrecht – Zur Tragfähigkeit einesKonzepts”, 2008, p. 333 – 347, lodged by the Association et al. at first instance as annex tothe Memorandum of Oral Pleadings, Professor Frowein reasoned as follows:© Van Diepen Van der Kroef Advocaten page 31 of 99

‘Darüber hinaus kann gefragt werden, ob die Vereinten Nationen in einem derartigen Fallnicht verpflichtet sind, auf ihre Immunität zu verzichten, was im Rahmen der Regelungenmöglich ist. Es entspricht nicht dem auf Menschenrechtsschutz angelegten System derVereinten Nationen, wenn für einen Völkermord insoweit kein Ersatz geleistet werdenkann. Dafür spricht auch die Resolution der Generalversammlung vom 16.12.2005 (Res.60/147) “Basic principles and guidelines on the right to a remedy and reparation for victimsof gross violations of international human rights law and serious violations of internationalhumanitarian law.” In Art. 2 empfehlen die Vereinten Nationen den Mitgliedstaaten, diesePrinzipien anzuwenden und in derartigen Fällen für das Individuum Ersatzansprüche zubegründen. Es kann bezweifelt werden, ob diese Grundsätze bereits geltendes Völkerrechtsind, aber jedenfalls legen sie eine wesentliche Tendenz fest. Unbestritten ist, dassinternationale Organisationen wie die Vereinten Nationen völkerrechtlich für Deliktehaften. Dass in Srebrenica ein völkerrechtliches Delikt auch der Vereinten Nationenvorliegt, wird in der Klageschrift eingehend begründet und dürfte weitgehend unbestrittensein. Daraus folgt, dass jedenfalls gegenüber dem Heimatstaat betroffenerStaatsangehöriger eine Verpflichtung der Vereinten Nationen besteht. Es spricht aber vielesdafür, in derartigen Fällen bei Untätigkeit des Heimatstaates auch dem Individuum gegendie Organisation Ansprüche zuzugestehen.’(“In addition it may be asked why the United Nations are not obliged in such a case to waivetheir immunity, which is possible under the rules. It is not consistent with the system of theUnited Nations, which is designed to protect human rights, that no compensation should bepaid for genocide. This point of view is also supported by the resolution of the GeneralAssembly of 16 December 2005 (Res. 60/147) “Basic principles and guidelines on the right toa remedy and reparation for victims of gross violations of international human rights law andserious violations of international humanitarian law.” In Article 2, the United Nationsrecommend that the member states apply these principles and allow compensation claimsfor individuals in such cases. It is doubtful whether these principles already constituteapplicable law of nations, but they do reflect an important trend. It is undisputed thatinternational organisations such as the United Nations are liable for tort under the law ofnations. That a tort under international law was also committed by the United Nations inSrebrenica was shown in detail in the writ of summons and should be largely undisputed. Itfollows from this that there is an obligation on the part of the United Nations at least vis-àvisthe home state of the citizens concerned. But there is much that speaks for also givingindividual claims against the organization in such cases if the home state remains inactive.”translation by lawyers)© Van Diepen Van der Kroef Advocaten page 32 of 99

It follows from this quotation also that the District Court’s understanding of internationallaw and international legal practice is incorrect.Basis of the immunity of the UN under international law76. The Association et al. will now deal in greater depth with Article 105 of the UN Charter,with Article II, § 2 of the Convention and the interpretation of those Articles on the basis ofthe Vienna Convention on Treaties. The framework introduced by the District Court on thispoint is incomplete and legally erroneous.77. Article 105 of the UN Charter must be interpreted in the light of Article 1 of the UN Charter.Article 1 of the UN Charter reads:‘The Purposes of the United Nations are:(…)3. (…) and in promoting and encouraging respect for human rights and for fundamentalfreedoms for all without distinction as to race, sex, language, or religion; and4.To be a centre for harmonizing the actions of nations in the attainment of these commonends.’Article 105 paragraph 1 of the UN Charter states:‘The Organisation shall enjoy in the territory of each of its Members such privileges andimmunities as are necessary for the fulfilment of its purposes.’The UN consequently has immunity to the extent that it is necessary for the fulfilment ofthe purposes of the UN. This does not relate exclusively to the general purposes of the UNbut also to the purposes that arise from a specific mandate, such as the mandate to ensureprotection of the Srebrenica Safe Area and its population. The Association et al. expresslypoints out in advance that upholding human rights, including hereunder the right of accessto an independent court, is one of the purposes of the United Nations.The immunity of the UN must be instrumental in furthering that purpose and it must not beso that such immunity obstructs the realisation of that purpose. The District Court showedno interest in such a notion of the relationship between objective and immunity, to whichthe latter must be instrumental. If the judgment of the District Court were to be followed,© Van Diepen Van der Kroef Advocaten page 33 of 99

the purpose would become subservient to the immunity, which would be in conflict with theletter and spirit of Articles 1 and 105 of the UN Charter.78. The District Court erred at law under legal consideration 5.12. After all, the District Courtincorrectly held that the acts, alternatively, omissions of the UN fell under Chapter VII ofthe UN Charter, as a result of which the disputed behaviour of the UN would fall within thefunctional scope of the organisation and on that ground immunity would apply. The reviewcriterion must be whether the claimed immunity is necessary or not for the fulfilment of thepurposes as set out in Article 1 of the UN Charter. It appears from the above and from whatyet follows that in the present case there is no question of any such necessity. The UN are inno way obstructed in the implementation of their duties by virtue of the fact that thecontested appearance of the UN would be reviewed by an independent court. TheAssociation et al. also refers in this context to Section 29 of the Convention, on the groundof which it was forseeable that the actions of the UN would be reviewed. Invocation of theimmunity of the UN by the State of the Netherlands serves purely political objectives. In thegrounds of the District Court there is no correlation between the invocation of immunity andthe fulfilment of the purposes prescribed by Article 105 paragraph 1 of the UN Charter. Norare the rights of individuals as envisaged in Article 1 of the UN Charter served by theinvocation of immunity. For the rest, as appears already from the above, should there be anissue of functional necessity for immunity, in the event of conflict between the necessityand the purposes, the immunity should yield before the purposes of the UN.79. Article 105 paragraph 3 of the UN Charter provides that the General Assembly of the UN canmake proposals with a view to determining the details of the application of paragraphs 1and 2 of Article 105 of the UN Charter. That does not entail, of course, that suchelaboration can set aside the rule laid down in Article 105 paragraph 1 of the UN Charter.The Convention on the Privileges and Immunities of the UN was adopted by the GeneralAssembly of the UN in 1946. It follows from that Convention that where the UN hasimmunity, the UN can waive that immunity. Article II paragraph 2 of this Convention states:‘The United Nations (…) shall enjoy immunity from every form of legal process exceptinsofar as in any particular case it has expressly waived its immunity.’© Van Diepen Van der Kroef Advocaten page 34 of 99

80. The Convention is based on the UN Charter and is therefore of a subordinate character. Thatenerges from the Preamble to the Convention. Articles 104 and 105 of the UN Charter arethere reproduced. The Preamble continues:‘Consequently the General Assembly by a Resolution adopted on the 13 February 1946,approved the following Convention and proposed for accession by each Member of theUnited Nations.’As the Convention is based on Articles 104 and 105 of the UN Charter, the Convention cannotextend further than the superior ranked UN Charter. The primacy of the UN Charter isexpressly confirmed by Article 103 of the UN Charter:‘In the event of a conflict between the obligations of the Members of the United Nationsunder the present Charter and their obligations under any other international agreement,their obligations under the present Charter shall prevail.’The District Court’s interpretation of immunity on the basis of the Convention is erroneous.The District Court should have determined the scope of the immunity on the basis of the UNCharter.Obligation to waive immunity81. At first instance the Association et al. argued already in the originating writ of summonsthat there was no issue of waiver in the present case given that it has been shown that noimmunity attaches to the UN as a result of Article 105 of the UN Charter (see number 449 ofthe writ of summons). Insofar as in these proceedings a functional necessity for immunitymight exist the Association et al. argues – alternatively - that the UN should have waivedany claim to it. The following serves as explanation therefor.82. The Convention states that the immunity of the UN should remain limited to cases where afunctional necessity for immunity exists. Section 14 of the Convention provides:‘Privileges and immunities are accorded to the representatives of Members not for thepersonal benefit of the individuals themselves, but in order to safeguard the independent© Van Diepen Van der Kroef Advocaten page 35 of 99

exercise of their functions in connection with the United Nations. Consequently a Membernot only has the right but is under a duty to waive the immunity of its representative inany case where in the opinion of the Member the immunity would impede the course ofjustice, and it can be waived without prejudice to the purpose for which the immunity isaccorded.’83. A similar provision is included under Section 20, for the ‘Officials’ of the UN and in Section23 for ‘Experts on missions’. Although a similar provision is not expressly stated for the UNitself, the same rule should apply also to the United Nations itself that immunity should notserve to prevent claims for compensation but rather that the ‘course of justice’ shouldprevail. Moreover, it should be emphasized yet again that this case concerns the worstpossible violations of human rights. Frowein also comes to the conclusion in the article citedabove that in this type of cases the UN are obliged to waive any possible claim to immunity(see number 74 of these Grounds of Appeal).Where the UN wrongly fails in its obligation to waive immunity, the Court may not upholdthat claim to immunity.Significance of Section 29 Convention84. The District Court dealt with Section 2 of the Convention. Where it was amazing that theDistrict Court did not include Sections 14, 20 and 23 in its judgment, it is totallyincomprehensible that the District Court actually ignored Section 29 of the Convention,under the Chapter ‘Settlement of disputes’. Section 29 reads:‘The United Nations shall make provisions for appropriate modes of settlement of:(a) disputes arising out of contracts of a private law character to which the United Nationsis a party; (…)’What emerges from the above is that already in 1946 account was taken of the possibilitythat the United Nations would be involved in a private law dispute and that it should beensured that access to justice would exist for such a dispute. That firmly establishes that© Van Diepen Van der Kroef Advocaten page 36 of 99

the decision of the District Court that an absolute immunity of the United Nations shouldexist is irreconcilable with the Convention. The fact that the United Nations has failed tocreate a legal remedy does not entail that the United Nations are unassailable. That shouldhave been all the more reason for the District Court to take jurisdiction. The Association etal. will return to this in the context of the discussion of the decision of the District Courtconcerning the right of access to the Court on the ground of Article 6 ECHR and Article 14ICCPR. With regard to those Articles the District Court for incomprehensible reasons failedto address Section 29.Interpretation in accordance with the Vienna Convention on Treaties85. The District Court has correctly held that the Convention of Vienna on the Law of Treaties(Trb. 1977, no. 169), hereafter: ‘the Vienna Convention on Treaties’, must be taken intoconsideration in the judgment of immunity norms (see legal consideration 5.11). It is notactually clear from the judgment in the case that the District Court actually reviewed theVienna Convention on Treaties and that it underpins its judgment. In that respect thejudgment suffers from an absence of grounds. If the District Court had reviewed the ViennaConvention on Treaties it would have come to a different judgment. The following serves asexplanation.86. Article 31 paragraph 1 of the Vienna Convention on Treaties reads:‘A treaty shall be interpreted in good faith in accordance with the ordinary meaning to begiven to the terms of the treaty in their context and in the light of its object and purpose.’Article 32 of the Vienna Convention on Treaties reads:‘Recourse may be made to supplementary means of interpretation, including thepreparatory work of the treaty and the circumstances of its conclusion, in order to confirmthe meaning resulting from the application of article 31, or to determine the meaningwhen the interpretation according to article 31:a) leaves the meaning ambiguous or obscure; or© Van Diepen Van der Kroef Advocaten page 37 of 99

) leads to a result which is manifestly absurd or unreasonable.’The Association et al. fails to understand why the District Court in its interpretation ofArticle 105 of the UN Charter did not at least address the question whether the result ofthat interpretation did not lead to a result that was unreasonable or absurd. After all, thevictims of a genocide (which occurred under the eyes of the United Nations, when theUnited Nations had promised protection) were denied every possible legal remedy, and thatwhile Section 29 of the Convention, on which the District Court based its decision,guarantees a legal remedy. The words ‘unreasonable’ and ‘absurd’ are even rathereuphemistic for the situation in which the District Court has placed the victims of thisgenocide. That conclusion serves to justify having recourse to supplementary means ofinterpretation, which in this context are of particular importance for the purposes for whichthe UN was instituted, including the protection of human rights, and thus including the rightof access to justice. Also of importance for interpretation are the circumstances underwhich the treaty was concluded. One of the cornerstones of the formation was the universaldesire and necessity to prevent genocide in the future. Article 105 paragraph 1 of the UNCharter should not be interpreted in the way that the District Court has done where itshould have been established that the granting of immunity conflicts with the realisation ofthe purposes and leads to the frustration of fundamental human rights.87. The principle that the shield of immunity of an international organization has anunavoidable obverse, namely, the obligation of the international organisation to ensure itsown independent legal remedy, is also expressed in the foreign literature (see for exampleK. Odendahl, in her Article (on the discussion of the decision of 25 January 2005 of theFrench Cour de Cassation in the case Degboe/African Development Bank) ImmunitätInternationaler Organisationen bei Dienstrechtsstreitigkeiten, IPRax 2007, p. 339 – 342, mostparticularly p. 340 righthand column):‘Seitens der herrschenden Ansicht in Literatur und Rechtsprechung wird daher mittlerweiledie These vertreten, dass internationale Organisationen nicht nur berechtigt, sondern sogarverpflichtet sind, eigene unabhängige Überprüfungsinstanzen zu schaffen, die als Gerichteverbindlich über Dienstrechtsstreitigkeiten entscheiden. Begründet wird die Pflicht damit,dass eine internationale Organisation trotz der Befreiung von der innerstaatlichenGerichtsbarkeit weiterhin an das Recht, insbesondere auch an die rechtsstaatlichen und© Van Diepen Van der Kroef Advocaten page 38 of 99

menschenrechtlichen Verpflichtungen ihrer Mitgliedstaaten, gebunden bleibe. Die Pflicht,einen organisationsinternen Rechtsweg für Streitigkeiten mit Dritten zu schaffen, sei dieKehrseite der Immunität.’(“Legal authors and the courts of law now therefore dominantly take the point of view thatinternational organizations are not only entitled, but even obliged to create their ownindependent review boards which take binding decisions as courts in disputes with staffmembers. It is said, as a reason for this obligation that, in spite of its immunity fromnational jurisdiction, an international organization remains bound by the law, especially alsothe rule of law and the human rights obligations of its member states. The duty to create alegal process with resort to a court within the organization for disputes with a third party issaid to be the downside of immunity.” translation by lawyers)It follows from this also that the immunity of the United Nations should exist only insofar asan own legal remedy is offered. Where that is absent the national court should deem itselfto have jurisdiction.88. The judgment of the District Court violates Articles 31 and 32 of the Vienna Convention onTreaties. The Convention prescribes a legal remedy under Section 29, which has not beenimplemented. The application of Section 2 without taking Section 29 into account leads to aclearly absurd and unreasonable result.Advisory Opinion ICJ89. The District Court concluded under legal consideration 5.13 that absolute immunity shouldbe the norm for the United Nations. The incorrectness of that judgment emerges alreadyfrom the above.In addition, the caselaw of the International Court of Justice (hereafter: ‘ICJ’) demonstratespositively that a weighing of interests should be conducted. A weighing of interests isirreconcilable with the absolute character of the immunity of the UN accepted by theDistrict Court. The Advisory Opinion of the ICJ to be discussed below is of importance here.© Van Diepen Van der Kroef Advocaten page 39 of 99

90. The ICJ gave an Advisory Opinion in 1999 (ICJ 29 April 1999, Difference Relating to Immunityfrom Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J.Reports 1999, p. 62 et seq., hereafter: ‘the Advisory Opinion’). This concerned the immunityof international organisations in general and the UN in particular. The State of theNetherlands also referred to the Advisory Opinion under point 3.2.7 of its motion in interimproceedings at first instance. The State of the Netherlands asserted on the basis of thisAdvisory Opinion of the ICJ that where proceedings are brought against the UN, the countrywhere the proceedings are brought is obliged to inform the Court of the position of theSecretary-General of the UN regarding the question of its immunity. The Court would thenbe obliged to follow the view of the Secretary-General of the UN unless there werecompelling reasons not to acknowledge that immunity. Such a compelling reason would onlyexist, according to the State of the Netherlands, where the UN expressly waived itsimmunity.91. The Advisory Opinion of the ICJ in the matter referred to above first of all related to anessentially different fact-complex. It concerned a dispute against the Special Rapporteur forthe UN Commission for Human Rights regarding the independence of the courts andattorneys in Malaysia. It did not, therefore, involve proceedings brought against the UNitself and the gravity of the case was of an entirely different order from genocide. After thisUN Rapporteur had expressed negative comments in a newspaper interview on the subjectof his enquiry he was beset with legal proceedings claiming compensation. This wasmanifestly an attempt to influence the judgment of the UN Rapporteur by putting him underpressure with legal proceedings during the enquiry. Section 22 of the Convention providesthe possibility for the Secretary-General to give a finding on the question whether an officialof the UN has acted within the performance of his or her duties, in which case functionalimmunity would attach. The Secretary-General of the UN concluded that the UN Rapporteurremained within the scope of his task when expressing his opinions so that functionalimmunity attached.According to the ICJ Malaysia should have brought the issue of immunity to the attention ofthe court at the commencement of the legal proceedings.92. The power of the Secretary-General to give a finding relates to the question whether therewas an exercise of function during a mission and not to the question whether immunityought to be accorded (see number 60 of the Advisory Opinion). The scope of immunity isclearly set out under number 61 of the Advisory Opinion:© Van Diepen Van der Kroef Advocaten page 40 of 99

‘When national courts are seised of a case in which the immunity of a United Nations agentis in issue, they should immediately be notified of any finding by the Secretary-Generalconcerning that immunity. That finding, and its documentary expression, creates apresumption which can only be set aside for the most compelling reasons and is thus to begiven the greatest weight by national courts.’This consideration relates to ‘experts’ in respect of whom the Convention lays down underArticle 23 that the Secretary-General may only waive immunity where in his opinionimmunity would impede the course of justice. Accordingly, there is in such cases alegislative basis for a finding of the Secretary-General, which, moreover, can be departedfrom. The ICJ did not hold that only the waiver of immunity by the UN was such acompelling reason that it constituted a ground for departing from the basic assumption ofimmunity. There is thus, according to the ICJ, certainly a possibility to depart fromimmunity, namely, ‘for the most compelling reasons’. That determination entails that thejudgment of the District Court that the immunity of the United Nations must be absolute iserroneous. There can be no doubt that involvement in genocide constitutes the ‘mostcompelling reason’. Indeed, no greater violation of human rights exists. Again for this reasonno immunity applies in this case.93. The Association et al. points out further that the ICJ in the Advisory Opinion dealt expresslywith the question whether in that specific case the expression of opinion by the UNRapporteur was done in the function of and within the scope of the mission entrusted tohim, in which case immunity could be accorded (see number 47 et seq. of the AdvisoryOpinion). The Advisory Opinion is a confirmation by the ICJ that in respect of internationalorganisations in general, and the UN in particular, there is an issue of functional (and notabsolute) immunity.94. Given the facts set out in the originating writ of summons (under numbers 6 through 287)the present case is of an entirely different order than the case discussed by the ICJ in itsAdvisory Opinion. Thus there is no issue of influencing the UN, against which the functionalimmunity of the UN correctly offers protection. The mission to protect the civilianpopulation that was in the Srebrenica Safe Area ended already some fourteen years ago.Furthermore, it is impossible to compare (joint) responsibility for genocide with a claim forcompensation for possibly defamatory opinions expressed by a UN Rapporteur. The examples© Van Diepen Van der Kroef Advocaten page 41 of 99

of functional necessity for immunity cited in the literature (see Kooijmans op. cit. pages171-172) are likewise of a fundamentally different order than the present case.95. The interim conclusion that here must be drawn is that the immunity of the United Nationsis not absolute but remains confined to the cases in which a functional necessity forimmunity exists. That functional necessity is not present in this case. The following servesas explanation.No necessity for immunity96. The admissiblity of the action brought against the UN does not entail any influencing orimpeding of the functioning of the UN in carrying out its duties. As was set out extensively inthe writ of summons the UN in its report on Srebrenica judged that it had made numerouserrors itself. What is at issue in these proceedings is the question, what are theconsequences of those errors? It is not the functioning as such of the UN that is at issue,rather the question whether the UN should be protected by the rule on immunity in respectof every type of unlawful conduct. As will be extensively discussed below in the context ofthe weighing of interests, where genocide is allowed to happen there should at the veryleast be an account given and it cannot be that that is prevented by according absoluteimmunity. That applies all the more for an organisation that has set itself – inter alia – thepurpose of preventing genocide and permanently dedicates itself to human rights. Thisorganisation has apparently made it a policy not to appear in legal proceedings in order toclaim immunity.The State of the Netherlands in its interim motion for a declaration of lack of jurisdictionhas attempted to cover up this most spectacular violation of human rights under the cloak ofimmunity. It is unacceptable that the District Court has allowed that claim.97. The Association et al. recalls that the genocide was committed fourteen years ago and theUN claims that lessons have been learned from this drama. In the case of the UN Rapporteurthe Public Prosecutor’s Department posed the question whether the Rapporteur had madeimproper statements in the media. It was acknowledged by the International Court ofJustice even in that far less consequential case that exceptional cases exist where it ispossible not to accord immunity to the UN. In the present case the following facts serve asstarting points:© Van Diepen Van der Kroef Advocaten page 42 of 99

- it is established that the UN had to protect the people in the Safe Area in order to preventviolations of human rights- it is established that the UN disarmed the civilians- it is established that the UN offered no resistance to the advancing Serbs- it is established that there was no intervention when aid convoys were stopped- it is established that massive violations of human rights occurred- it is established that the weapons were not returned by Dutchbat when the populationwished to resist the advancing Serbs with the announcement by Dutchbat that it wouldensure protection- it is established that the UN provided no Close Air Support- it is established that the UN co-operated in the deportation of the victims- it is established that genocide was committed.It was not open to the UN under these circumstances to make an (indirect) appeal toimmunity. The UN should instead have waived immunity. Whatever may be the case, giventhe above facts the claim of immunity has to be ignored and the rights of the Association etal. have to prevail. An independent judicial review of the claim of the Association et al.should take place.Criticism of international practice as a norm98. The District Court held under legal consideration 5.13 that absolute immunity of the UnitedNations was the norm in international practice, and that such norm is to be respected.The judgment erroneously ignores the fact that the United Nations has never before beensued on the basis of the fact complex set out in the writ of summons, which includesinvolvement in genocide and also other very serious violations of human rights. Nointernational practice existed in this field prior to 1995 (happily) and no caselaw exists onthis type of exceptional case.99. Besides that, the question should be posed whether international practice should be thenorm in the present case. Practice can be a source of law but may not be misused as anexcuse to legitimate unlawful conduct. It is rather the law that should prevail not thepractice.© Van Diepen Van der Kroef Advocaten page 43 of 99

100. Even where the District Court had held that international practice entailed an absoluteimmunity for the United Nations, the District Court should still have reviewed whether theresult in the present case was just. The facts set out in the originating writ of summonsshow that this is an exceptional case. To the extent that any case can be dismissed byreference to general rules, the District Court should not have done so in the present case.An actual review should indeed always be conducted. International discussion has followedthe disputed judgment of the District Court to the effect that insofar as an absoluteimmunity for the United Nations might already exist, international practice would benefitfrom an outcome that was different to that given by the District Court.There has also been heavy criticism of the judgment of the District Court in the Netherlands(see for example C.M. Schrijnen, Immuniteit van het UN, NJB, 2008, pp. 1801-1802).101. The upshot of the above is that the immunity of the UN is not absolute. The District Courtshould have reviewed whether there existed in the present case a functional necessity forimmunity. There is no room for a functional necessity for immunity of the UN in the case ofgenocide. Moreover, a weighing of interests should have been conducted. Genocide operatesas the most compelling reason, with the result that no immunity should be accorded. Inaddition, the District Court failed to review against the Vienna Convention on Treaties, areview that must have led to the conclusion that according immunity in this case would haveled to a clearly absurd and unreasonable result. Furthermore, the District Court erroneouslyfailed to take the judgment of the CAVV into consideration in its decision.Finally, the District Court has based itself on non-existent international practice while suchpractice ought not to apply as an absolute norm.Ground of appeal 8102. The District Court has erroneously considered under legal consideration 5.14 that:‘The Court dismisses the argument of the Association et al. that, as evidenced by therestrictive subordinate clause “as are necessary for the fulfilment of its purposes” inArticle 105 paragraph 1 of the UN Charter, the immunity of the UN only exists in thoseinstances in which the domestic court addressed – in this case, a court in the Netherlands –actually considers the allegedly culpable acts and omissions of the UN as “necessary”. In© Van Diepen Van der Kroef Advocaten page 44 of 99

view of, inter alia, the manner in which the norm of Article 105 paragraph 1 of the UNCharter, was detailed in the Convention, it is in principle not at the discretion of anational court to give its opinion on the “necessity” of the UN actions within the functionalframework described 5.12. A comprehensive, “full” review on the merits is also contraryto the ratio of the immunity of the UN as enshrined in international law. The Courtsubscribes to the State’s assertion that also for this reason domestic courts should assessthe acts and omissions of UN bodies on missions such as the one in Bosnia-Herzegovina onlywith the greatest caution and restraint. It is very likely that any more far-reaching reviewwould have huge consequences for the Security Council’s decision-making on similar peacekeepingmissions.’Explanation of ground of appeal 8103. Legal consideration 5.14 elaborates on legal consideration 5.12 of the District Court. It wasraised frequently in the ground of appeal developed in response to legal consideration 5.12that the review standard should be whether the immunity claimed is necessary for thefulfilment of the purposes set out in Article 1 of the UN Charter. The United Nations were inno sense impeded in carrying out their duties by the fact that an independent courtreviewed ex post facto the contested conduct of the United Nations. The Association et al.refers in this context also to Section 29 of the Convention, which prescribes a legal remedy.It follows from that that it was foreseeable and not contrary to legal certainty that theconduct of the UN would be reviewed by an independent court.104. The District Court erroneously held that the Association et al. would argue that the Courtpetitioned must review whether the disputed conduct was actually necessary. TheAssociation et al. has not argued that (as a result of which the view of the District Court iserroneous) and that is also not the position at law. The Association et al. argued thatimmunity exists insofar as a functional necessity for it exists. It is not the conduct itself butthe immunity for that conduct that must be necessary. The legal basis for such a reviewarises from Articles 1 and 105 paragraph 1 of the UN Charter. It is the necessity forimmunity that should have been the issue not the necessity for the conduct.© Van Diepen Van der Kroef Advocaten page 45 of 99

105. The District Court referred under legal consideration 5.14 also to the effect of Article 105paragraph 1 of the UN Charter, to the Convention and the reason for the immunity of theUnited Nations entrenched in international law. It was raised frequently above that theConvention is subordinate to the UN Charter. That is expressly stated indeed in Article 103of the UN Charter. Where the District Court states that Article 105 paragraph 1 of the UNCharter is at odds with the Convention, the District Court had the opportunity on the basisof Article 103 of the UN Charter to allow the provisions of Article 105 of the UN Charter toprevail. It remains unclear from the grounds of the District Court why more weight shouldbe given to international practice (for that matter incorrectly outlined by the District Court)and the Convention than to the express purposes of the United Nations set out in Article 1 ofthe UN Charter. On top of that the Convention under Section 29 provides the possibility tobring an action against the United Nations. There is, accordingly, an independent reviewactually built into the system of international law for the purpose of judging the conduct ofthe United Nations. The national court gets a role in this case because the United Nationsfailed for more than 60 years in their express international obligation to create a legalremedy. The European Court of Justice – as will be raised again under ground of appeal 14 –also has determined that the court must always take fundamental rights into account andthat there exists no priority for rules of the UN (ECJ EC, dated 3 September 2008, Case C-415/05 P, Al Barakaat International Foundation against Council of the European Communityand Commission of the European Communities).That entails that the District Court can and must review the immunity against fundamentalhuman rights.106. The District Court considered under legal consideration 5.14 that a substantive, ‘full’ review(in the light of Article 105 paragraph 1 of the UN Charter) would be contrary to the rationaleof the immunity entrenched in international law. That consideration does not accord withthe judgment of the Court of Justice just cited. The Association et al. affirm their positionthat they recognize in principle the right to functional immunity. It is part of internationallaw that this immunity is limited by the necessity for immunity in the exercise of the dutiesof the United Nations. The immunity is subordinate to the purposes of the UN. The right ofaccess to the Court was cited as a human right, a right that arises from Article 6 ECHR. TheAssociation et al. will return to that in a seperate ground of appeal (ground of appeal 14).© Van Diepen Van der Kroef Advocaten page 46 of 99

107. The District Court endorses also the proposition of the State of the Netherlands that theDistrict Court should judge the conduct of UN organs on missions such as that in Bosnia-Herzegovina with the greatest caution and restraint. Quite apart from the question whetherthat is a proper norm with which to judge the conduct of the United Nations, the DistrictCourt fails to give a judgment in regard to these frameworks. The District Court gaveabsolutely no judgment on the mission in question whether or not with caution or restraintor both. The District Court certainly did hold that it was absolutely not entitled to give anyjudgment on such missions. The grounds of the District Court are thus in conflict with itsdecision.108. Finally, the District Court considered under legal consideration 5.14 that it was entirelycredible that a more far-reaching review would have huge consequences for the decisionmakingof the Security Council in respect of similar peace-keeping missions. The DistrictCourt apparently attached considerable value to this determination but without furnishingany grounds for it. The consideration is thus insufficiently reasoned. In addition, theAssociation et al. makes the following three remarks on the consideration by the Court.109. First, the Association et al. notes that this is a political observation not a legalconsideration. It would be manifestly politically undesirable should the United Nations haveto appear before the court in the Netherlands under the gaze of the world. There is theappearance that the entire judgment of the District Court is ultimately oriented towardsthat political end.The Association et al. can offer no defence against such a political judgment and points outthat the law should be derived from legal sources and not from political reasons. Secondly,the Association et al. points out that the allegedly culpable conduct does not relate to thedecision-making in the Security Council but rather to the implementation of those decisionsas a result of which – even in the view of the United Nations itself – grave errors were made.Those errors have had the most serious possible consequences for those whom the SecurityCouncil intended to protect. The result was the first genocide within Europe since theSecond World War. Thirdly, it must be questioned whether the proposition that the taking ofjurisdiction by the national court would have huge consequences for the decision-making ofthe Security Council is indeed a proper basis for judgment. If the commission of genocide inthe Srebrenica Safe Area has not yet had such huge consequences then it is all the more© Van Diepen Van der Kroef Advocaten page 47 of 99

necessary that change is there effectuated. The UN and the State of the Netherlands assertin the researches financed by them (UN Report and NIOD Report) that lessons have beenlearned from their errors. The Association et al. repeats that what is at issue here are notthe decisions themselves but the implementation thereof. It is unacceptable that the UnitedNations should be the only organisation in the world that is not subject to judicial review forany instance of unlawful conduct, including permitting the commission of genocide. Finally,the Association et al. points out once more that Section 29 of the Convention provides for areview by an independent court. The manifestly so undesirable influencing assumed by theDistrict Court is thus already provided for in the Convention. The Association et al. merelyclaims what is already obligatory under international law.Ground of appeal 9110. The District Court erroneously held under legal consideration 5.15 that:‘Neither does the available, but scant, jurisprudence about the scope of the norm of article105 paragraph 1 of the UN Charter afford grounds for the conclusion that a national court,if and insofar as it has scope for review, can proceed in any other way than with theutmost reticence.In its Advisory Opinion of April 29, 1999 on the immunity of a UN worker the InternationalCourt of Justice rules that possible wrongful acts committed by the UN are not open toassessment by national courts, but should take place in the context of specific disputesettlement as provided for in Article VIII, paragraph 29 of the Convention (DifferenceRelating to Immunity from Legal Process of a Special Rapporteur of the Commission onHuman Rights, Advisory Opinion, I.C.J. 1999, p. 62, paragraph 66). There are no legalgrounds for the assertion that the lack of an adequate provision within the meaning ofArticle VIII, paragraph 29 warrants any infringement of the principal rule of Article 105paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue in this caseand of (2) the question what scope for review the court would have had.’© Van Diepen Van der Kroef Advocaten page 48 of 99

Explanation of ground of appeal 9111. In legal consideration 5.15 the District Court intended to address the available caselaw onthe scope of Article 105 paragraph 1 of the UN Charter. The District Court actually failed toaddress the most important relevant case. In its discussion of the Advisory Opinion of the ICJreferred to several times above the District Court passed over the essence of that judgment.The explanation to this ground of appeal will clarify various points. The Association et al.will also deal with other relevant caselaw and the Report of the Dutch Advisory Commissionon Issues arising under Public International Law (CAVV).112. As was said above, the Association et al. is surprised that the District Court failed to addressthe Manderlier Case cited above. That is the only case that concerns the immunity of theUN. The Manderlier Case is discussed extensively above and entails that the Court now hasjurisdiction to hear an action brought against the United Nations. Moreover, the facts in thepresent case, much more so than in the Manderlier Case, provide cause to assume thatjurisdiction.113. The District Court concluded under legal consideration 5.15 that on the basis of the AdvisoryOpinion of the ICJ it should proceed with the utmost reticence. That is an erroneousconclusion to be drawn from the Advisory Opinion.Even if that conclusion were to be correct, it still holds that a review done with the utmostreticence is something entirely different from no review. The District Court thus erroneouslyfailed to conduct any review and assumed absolute immunity.114. Legal consideration 66 of the Advisory Opinion cited by the District Court does not addressthe essence of that judgment. In that legal consideration the ICJ referred to Section 29 ofthe Convention. It is not disputed that in the present case no legal remedy within themeaning of Section 29 was available. The ICJ in the Advisory Opinion did not address thequestion what is the law if – as in the present case – a mode of settlement within themeaning of Section 29 of the Convention is absent.© Van Diepen Van der Kroef Advocaten page 49 of 99

115. It is also incomprehensible that the District Court failed to address the propositions of theAssociation et al. regarding the Advisory Opinion. Thus the District Court failed to addressthe judgment of the ICJ that the immunity of the UN can yield. The scope of immunity isexpressed more clearly under number 61 of the Advisory Opinion:‘When national courts are seised of a case in which the immunity of a United Nations agentis in issue, they should immediately be notified of any finding by the Secretary-Generalconcerning that immunity. That finding, and its documentary expression, creates apresumption which can only be set aside for the most compelling reasons and is thus to begiven the greatest weight by national courts.’This confirms that a weighing of interests should be conducted and that the national court –contrary to what the District Court has held – does clearly have jurisdiction to conduct areview. As the ICJ in the case against Malaysia has already held that in regard to defamationcompelling reasons can exist to depart from the view of the Secretary-General (regardingthe functioning of an official), that shall without more be the case with genocide. It alsoapplies that in the present case the Secretary-General has no power to notify a finding andhas indeed not made any finding.The Association et al. incidentally points out also that it was open to the United Nations,represented by the Secretary-General, to waive immunity (see numbers 81 through 83).The Association et al. refers in that context to what the Secretary-General in reaction to thewrit of summons on 8 June 2007 (through his spokeswoman) declared (to be read on the UNwebsite under the heading ‘Secretary-General fully supports call for justice in Srebrenicamassacres’, see: www.un.org/News/ossg/hilites/hilites_arch_view.asp?HICJID=857):‘Asked about a letter sent by the group Women of Srebrenica, the Spokeswoman said shehad just learned that the United Nations had received legal documents relating to the caseand that the survivors of the Srebrenica massacres are absolutely right to demand justicefor the most heinous crimes committed on European soil since World War II. The Secretary-General joins them in that demand, without reservation, and expresses his deepestsympathies to them and to the relatives of those brutally executed at Srebrenica, almost12 years ago. (…)’The difference between word and deed is certainly remarkable.© Van Diepen Van der Kroef Advocaten page 50 of 99

116. The District Court considered further under the last sentence of legal consideration 5.15:‘There are no legal grounds for the assertion that the lack of an adequate provision withinthe meaning of article VIII, paragraph 29 warrants any infringement of the principal rule ofArticle 105 paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue inthis case and of (2) the question what scope for testing the court would have had.’The District Court misunderstood, first, that what was at issue was not an encroachment onArticle 105 paragraph 1 of the UN Charter, but an application of that Article. As wasdiscussed above, Article 105 paragraph 1 provides only a limited immunity and a review isallowed. Secondly, the fact that the UN has provided no access to justice within themeaning of Section 29 provides sufficient legal cause to give access to national court. TheDistrict Court incomprehensibly simply ignores the fact that the United Nations has alreadyfailed to meet its international obligation for 60 years. Articles 31 and 32 of the ViennaConvention on Treaties also deserve to be cited here, articles that provide that there shouldbe an ‘interpretation’ if application of any article leads to a result that is unclear or absurd.As was said above, the District Court evidenced no proper understanding of these Articles.117. The District Court did not address the caselaw regarding the immunity of internationalorganisations cited by the Association et al. That is incomprehensible. After all, the caselawin question certainly justifies the conclusion that under certain circumstances the immunityof an international organisation should yield to the interests of the litigant. The Associationet al. will now address this caselaw.Caselaw on the immunity of international organisations118. The Hoge Raad recognized already in 1985 (HR 20 December 1985, NJ 1986, 438(Spanish/Iran-United States Claims Tribunal) that in the absence of an alternative andeffective legal remedy, the immunity of the international organisation should yield beforethe interests of the litigant. In that case immunity was accorded only because theinternational organisation in question provided an alternative legal remedy (see legal© Van Diepen Van der Kroef Advocaten page 51 of 99

consideration 3.3.6). Under legal consideration 3.3.2 the Hoge Raad held with reference toan employee of an international organisation proceeding against the employer:‘The question whether, and if so in which cases an appeal to the privilege of immunityfrom jurisdiction by an international organisation must be upheld is principally ofimportance in the light of – and arises in these proceedings exclusively in relation to – thejurisdiction of the court of the host country. Giving an answer to this question requires inprinciple a weighing of two interests, each weighty but conflicting: on one side, theinterest of the international organisation that under all circumstances the independent andunimpeded performance of its tasks is guaranteed; on the other, the interest of the otherparty that its dispute with the international organisation will be heard and resolved by anindependent court.’It was also expressly held in the case cited that the fact that the allegedly culpable conductfell within the functional immunity was not an obstacle to the weighing of interests referredto above (see legal consideration 3.3.5).Even if the District Court were to hold that the allegedly culpable conduct of the UN fellwithin the functional immunity, the right of access to the Court must be weighed againstthat immunity.119. The Association et al. also finds support for its propositions in the caselaw of the DistrictCourt The Hague, 28 November 2001, NJkort 2002, 1. The District Court held that it hadjurisdiction to hear a dispute where an international organisation claimed immunity but noalternative effective legal remedy was available. That case concerned a labour disputebetween an international organisation (ISNAR) and an employee (Baur). Such a dispute falls(naturally) within the functional immunity. The District Court also established that underlegal consideration 5.3. ISNAR had asserted in the proceedings that its staff regulationsprovided an alternative legal remedy. That assertion was dismissed by the District Court(see legal consideration 5.10):‘Baur et al. have argued that the proceedings referred to in Article 16 of the staffregulations do not in this present case constitute an effective judicial process and offerinsufficient protection. Reference was made in particular to the absence of informationon this judicial process or to time periods and to the fact that there has been noimplementation of the “regulations” within ISNAR itself: the ISNAR Appeal© Van Diepen Van der Kroef Advocaten page 52 of 99

Committee does not exist and nor does the Chairperson thereof. ISNAR has not dealtsubstantively with this point but has merely claimed that it is not significant to thequestion whether immunity is accorded to ISNAR. The District Court has another viewon this. Indeed, every person has a right – also under international law – to aneffective judicial process in cases such the present. Should it emerge therefore that thejudicial process under the staff regulations is not in this specific case effective, then aduty arises upon the Netherlands court.’120. It could be deduced from the opening of legal consideration 5.15 that the District Court wasdiscussing only the caselaw on the norm of Article 105 paragraph 1 of the UN Charter. Itemerges from the remaining of legal consideration 5.15 that actually the District Court wasdealing more broadly with the norm of Article 105 and also addressed the question whatwould be the legal basis for an encroachment on Article 105 paragraph 1 of the UN Charter.Before dealing with other legal sources than the caselaw the Association et al. repeats thatit holds the view primarily that there is here no issue of any encroachment on Article 105paragraph 1 of the UN Charter, only of an application of it.As was said above, the immunity extends no further than the functional necessity for it andthere is here no issue of any such functional necessity, alternatively that such functionalimmunity should yield in the context of a weighing of interests.Advisory Commission on Issues arising under International Law (CAVV)121. The Association et al. again recalled in the writ of summons (under point 452) that theAdvisory Commission on Issues arising under Public International Law (CAVV) set up by theState of the Netherlands has held that in the absence of any other legal remedy, the right ofaccess to the court is more important than the claim to immunity. The CAVV is the mostimportant advisory body to the State of the Netherlands on issues arising in the field ofinternational law. The CAVV wrote in Article 4.5.2 of its Report no. 13 that the nationalcourt:‘(…) should proceed to a prima facie investigation in the light of international legal normsof the availibility of adequate internal legal remedies that are available within aninternational organisation to the aggrieved party. In the event of a negative result it is© Van Diepen Van der Kroef Advocaten page 53 of 99

desirable that national courts do not accord immunity and proceed to settlement of thedispute at hand.’122. In the meantime, it is accepted in the most recent literature that the immunity ofinternational organisations, such as the UN, is no (longer) self-evident. The District Courtalso erroneously ignored this literature. The Association et al. refers to A. Reinisch, in R.Hofmann e.a., Die Rechtskontrolle von Organen der stateengemeinschaft, 2007, page 43).123. It is confirmed also in other literature that the Netherlands Court should check whetherupon establishing the functional immunity there would exist an alternative and effectivelegal remedy available to the litigant. If that is not the case, no immunity should beaccorded to the international organisation (see Kooijmans, op. cit., page 175). K. Wellenshas expressed the same view in publication, ‘Fragmentation of international law andestablishing an accountability regime for international organizations: The role of thejudiciary in closing the gap’ (see Michigan Journal of International Law, 11 May 2004).Wellens states, with reference also to Ch. Dominicé, that the right of access to the courtshould weigh more heavily than the interest of immunity (K. Wellens, op. cit., page 18):‘(…) access should prevail over immunity if no legal remedy is available.’Finally, the Association et al. refers to Van der Plas, op. cit., page 265:‘More to the point it follows from the caselaw of the ECHR that the right of access impedesany according of immunity where the plaintiff would otherwise have no effective legalremedy. The curtailment of Article 6 paragraph 1 ECHR would be disproportionate in such acase, alternatively would impugn the essence of the right of the plaintiff.’Ground of appeal 10124. The District Court erroneously considered under legal consideration 5.16 that:‘Now that the interpretation Article 105 of the UN Charter does not offer grounds forrestricting the immunity, the question arises whether other international-law norms –outside the UN frame of reference – prompt a different opinion. This enquiry into© Van Diepen Van der Kroef Advocaten page 54 of 99

conflicting norms is necessary because there are insufficient grounds for accepting a fulland unconditional priority of international-law obligations of the State under the UNCharter over other international-law obligations of the State. The rule of Article 103 of theUN Charter invoked by the State does not always and without more bring relief in the eventof conflicting obligations of a peremptory character (ius cogens) or conflicting human rightsobligations of an international customary law nature.’Explanation of ground of appeal 10125. The opening sentence of legal consideration 5.16 is a summary of earlier legalconsiderations against which the Association et al. has directed separate grounds of appeal.The incorrectness of earlier legal considerations is also the incorrectness of the openingsentence of legal consideration 5.16. Beside that the following applies.It appears from the above grounds of appeal and the explanation thereto that the DistrictCourt has erroneously left essential provisions of the UN Charter, the Vienna Convention onTreaties, caselaw and literature out of consideration in its judgment. The District Courtshould have reviewed already in the framework of the interpretation of Article 105paragraph 1 of the UN Charter whether that interpretation did justice to, for example,Article 6 ECHR. It is after all not imaginable that the UN Charter would have to beinterpreted as being in conflict with that Article.Indeed, Article 105 paragraph 1 of the UN Charter expressly refers to the purposes of theUnited Nations, which Article specifies the protection of human rights as a purpose of theUnited Nations. Article 105 paragraph 1 of the UN Charter is merely a means forimplementation of those purposes. Only where immunity would constitute a purpose in itself– a notion that is not supported by either the text of the import of Article 1 of the UNCharter – should there be room to weigh immunity against the norms of Article 6 ECHR.126. The District Court correctly observed that it was not self-evident that the UN Charter haspriority over other treaty obligations or human rights. The Association et al. notes in thatcontext that it manifests a much too restrictive interpretation of one’s task that the Stateof the Netherlands (and with it: its body the Public Prosecutor’s Department) showed no© Van Diepen Van der Kroef Advocaten page 55 of 99

evidence of the necessity of conducting a balancing between different internationalobligations. The State of the Netherlands apparently found it necessary only to plead theimmunity of the UN on the ground of Section 2 of the Convention. The State of theNetherlands was unconcerned by all those other conflicting treaty norms. It cannot beapproved that the State of the Netherlands has focussed on a single alleged internationalobligation. Human rights played no role for the State of the Netherlands. The District Courtshould have corrected that position of the State of the Netherlands.Ground of appeal 11127. The District Court erroneously considered under legal consideration 5.18 that:‘The Genocide Convention comprises as principal rule the penalization of genocide. FromArticle 1 of this Convention it is clear that theContracting Parties, including theNetherlands, undertake to prevent genocide – and therefore not to commit the crimethemselves – as well as to punish it.’The District Court also erroneously considered under legal consideration 5.19 that:‘Neither the text of the Genocide Convention or any other treaty, nor internationalcustomary law or the practice of states offer scope in this respect for the obligations of aNetherlands court to enforce the norms of the Genocide Convention by means of a civilaction. The Contracting Parties are obliged to punish all acts defined by this Convention asgenocide within the boundaries set in Article VI of the Convention. Also, as stated before,the states are bound to prevent genocide and therefore to refrain from committing itthemselves. The states are bound also clearly to set out obligations on the extradition ofsuspects of genocide, but the Convention does not provide for (any obligation pertainingto) the enforcement of the norms of enforcing the prohibition on genocide via a civil lawaction. It should be noted here that the International Court of Justice ruled in 2007 aboutthe substance of obligations of parties to the Genocide Convention and in that contextomitted to discuss any obligation by states to enforce the Convention by means of civil lawactions (ruling of February 26, 2007 on the application of the Convention on the Prevention© Van Diepen Van der Kroef Advocaten page 56 of 99

and Punishment of the Crime of Genocide in the case of Bosnia and Herzegovina v. Serbiaand Montenegro, paragraphs 155-179).’Explanation of ground of appeal 11Obligation to prevent genocide128. The UN considered in Resolution 96 (1) of 11 December 1946 that genocide is a crime underinternational law, contrary to the spirit and the purposes of the United Nations andcondemned by the civilized world.129. Article 1 of the Genocide Convention reads:‘The Contracting Parties confirm that genocide, whether committed in time of peace or intime of war, is a crime under international law which they undertake to prevent and topunish.’The determination by the District Court that the fundamental principle of the GenocideConvention was the penalization of genocide is erroneous given the text of Article 1 of theGenocide Convention. The prevention of genocide is at least as important, if not moreimportant than its punishment. Punishing genocide does not return lost lives to an individualor a group of victims of genocide whereas they do retain their lives if genocide is prevented.The Genocide Convention lists in that connection first the prevention and then thepunishment. The ruling of the ICJ in The Hague of 26 February 2007 (Bosnia-Herzegovina/Serbia and Montenegro) is also of importance here. The Association et al. willdeal further with that ruling below. Before that the Association et al. notes by way ofillustration that also here the ICJ under legal consideration 161 of its ruling refers to anAdvisory Opinion of the ICJ from 1951, in which was again established that:‘The Convention was manifestly adopted for a purely humanitarian and civilizing purpose(….) it is indeed difficult to imagine a convention that might have this dual character to agreater degree, since its object on the one hand is to safeguard the very existence ofcertain human groups and on the other to confirm and endorse the most elementaryprinciples of morality.’© Van Diepen Van der Kroef Advocaten page 57 of 99

The whole point of the Genocide Convention is the purpose of protecting people and layingdown elementary norms and not, as the District Court held, the punishment of genocide.130. After the ICJ ruled that genocide had been committed in Srebrenica, the ICJ followed thatin its ruling of 26 February 2007 with the determination that the prevention of genocidewithin the meaning of Article 1 of the Genocide Convention is an autonomous obligation. Itis not an introduction to the more specific obligations contained in the GenocideConvention. The ICJ ruled on the obligation within the meaning of Article I of the GenocideConvention as follows (see legal consideration 155 et seq., with the conclusion under legalconsideration 165):‘(…) confirm that Article I does impose distinct obligations over and above those imposedby other Articles of the Convention. In particular, the Contracting Parties have a directobligation to prevent genocide.’131. Article VIII of the Genocide Convention provides that any Contracting Party to theConvention may call upon the UN in order to prevent and suppress genocide. The duty toprevent genocide within the meaning of Article I of the Genocide Convention entails muchmore than merely calling upon the UN. The ICJ in its ruling of 26 February 2007 laid downthat the Contracting Parties to the Convention are under the obligation to take all necessarymeasures to prevent genocide, even where the UN has already been involved (see legalconsideration 427).132. The ICJ ruled further that the obligation to prevent genocide is not a result obligation butan obligation of conduct. Nonetheless, that obligation of conduct goes very far. All possiblemeasures must be taken to prevent genocide. A State is not responsible because the desiredresult is not achieved but is certainly responsible if all measures that lay in the power ofthat State were not taken. The violation of Article I of the Genocide Convention (idem) alsooccurs even if the deployment by the State of all the means available could not haveprevented the genocide (see legal consideration 430 of the ICJ ruling dated 26 February2007):‘(…) it is clear that the obligation in question is one of conduct and not one of result, in thesense that a State cannot be under an obligation to succeed, whatever the circumstances,© Van Diepen Van der Kroef Advocaten page 58 of 99

in preventing the commission of genocide: the obligation of States parties is rather toemploy all means reasonably available to them, so as to prevent genocide so far aspossible. A State does not incur responsibility simply because the desired result is notachieved; responsibility is however incurred if the State manifestly failed to take allmeasures to prevent genocide which were within its power, and which might havecontributed to preventing the genocide. In this area the notion of “due diligence”, whichcalls for an assessment in concreto, is of critical importance. Various parameters operatewhen assessing whether a State has duly discharged the obligation concerned. The first,which varies greatly from one State to another, is clearly the capacity to influenceeffectively the action of persons likely to commit, or already committing, genocide.This capacity itself depends, among other things, on the geographical distance of the Stateconcerned from the scene of the events, and on the strength of the political links, as wellas links of all other kinds, between the authorities of that State and the main actors in theevents. The State’s capacity to influence must also be assessed by legal criteria, since it isclear that every State may only act within the limits permitted by international law; seenthus, a State’s capacity to influence may vary depending on its particular legal position visà-visthe situations and persons facing the danger, or the reality of genocide. On the otherhand, it is irrelevant whether the State whose responsibility is in issue claims, or evenproves, that even if it had employed all means reasonably at its disposal, they would nothave sufficed to prevent the commission of genocide. As well as being generally difficult toprove, this is irrelevant to the breach of the obligation of conduct in question, the more sosince the possibility remains that the combined efforts of several States, each complyingwith its obligation to prevent, might have achieved the result – averting the commission ofgenocide – which the efforts of only one State were insufficient to produce.’133. The Association et al. makes the incidental comment that the UN and the State of theNetherlands breached their obligation to deploy all means to prevent genocide. Thatappears from the facts set out in the originating writ of summons. The State of theNetherlands despatched Dutchbat when it was inadequately armed and trained. Thearmament that was sent with the troops was not deployed when that was required. The UNand the State of the Netherlands should have protected the population in accordance withthe agreements made and undertakings given. The Close Air Support was not deployed,alternatively not deployed in good time and adequately. Furthermore, the eventual airattack of 11 July 1995 (the day that the Srebrenica Safe Area would fall) was recalledthrough the fault of the State of the Netherlands. As a result, everything was not done to© Van Diepen Van der Kroef Advocaten page 59 of 99

prevent the genocide. Worse still, with that the State of the Netherlands actively botchedthe little military action that was undertaken to prevent genocide. Additionally, theobserved war crimes should have been reported, which could have saved many lives. TheUnited Nations and the State of the Netherlands also took it upon themselves to play anactive role in separating the men and the women. It is here repeated that the ICJ has ruledthat for the violation of Article I of the Genocide Convention it is not relevant whether theemployment of all available measures would have prevented the genocide. The Associationet al. here also records again that numerous other violations of human rights occurred. TheAssociation et al. refers to points 412 through 417 of the originating writ of summons.134. In reviewing the question whether there was violation of Article I of the GenocideConvention it is not relevant that the allegedly culpable conduct (alternatively, theallegedly culpable omissions) has (have) occurred prior to the genocide that was committedfrom 13 July 1995. The prevention of genocide is, after all, by definition conduct that occursprior to the commission of the genocide. The ICJ in its ruling of 26 February 2007 held onthis that (see legal consideration 431):‘(…) a State can be held responsible for breaching the obligation to prevent genocide only ifgenocide was actually committed. (…) This obviously does not mean that the obligation toprevent genocide only comes into being when perpetration of genocide commences; thatwould be absurd, since the whole point of the obligation is to prevent, or attempt toprevent, the occurrence of the act. In fact, a State’s obligation to prevent, and thecorresponding duty to act, arise at the instant that the State learns of, or should normallyhave learned of, the existence of a serious risk that genocide will be committed. From thatmoment onwards, if the State has available to it means likely to have a deterrent effect onthose suspected of preparing genocide, or reasonably suspected of harboring specific intent(dolus specialis), it is under a duty to make such use of these means as the circumstancespermit.’135. The above ruling means that the UN and the State of the Netherlands had to employ allavailable means from the moment that they knew, or should reasonably have known thatgenocide would occur. As has been discussed above and as will be addressed again below,the UN and the State of the Netherlands were from 1993 already aware of the threatenedgenocide. Furthermore, the UN and the State of the Netherlands knew that the BosnianSerbs were continuing to attack the Safe Area and that the objective of the Bosnian Serbs© Van Diepen Van der Kroef Advocaten page 60 of 99

was the ethnic cleansing of this area. The facts and circumstances set out above that wereplayed out under the eyes of Dutchbat were an unmistakable signal of what would occur.The majority of the murders occurred in the days following the fall of the Safe Area.136. The following shows that the UN and the State of the Netherlands had specific knowledgethat genocide threatened. The UN Report of 30 April 1993 (UN, S/25700, Report of theSecurity Council established pursuant to resolution 819 (1993)) contains the following:‘(14) UNPROFOR had participated actively in the drafting and the process of convincingthe Bosnian Commander to sign the agreement (addition of the attorney: demilitarisationagreement of 18 April 1993). The alternative could have been a massacre of 25,000people.(…)(17) There is no doubt that had this agreement not been reached, most probably amassacre would have taken place, which justifies the efforts of the UNPROFORCommander.(…)(19) During the Mission’s briefing at Srebrenica, the representative of ICRC informed itthat the Serbs were not allowing surgeons to enter the city, in direct violation ofinternational humanitarian law. There were many wounded requiring surgery. The onlysurgeon in the city has not been authorized to stay by the Serbs. To impede medicalassistance is a crime of genocide. This action, together with the cutting of the watersupply and electricity, have put into effect a slow-motion process of genocide.(…)(27) (g) (…) The attitude of defiance of the Serbs towards the United Nations in general isa matter that should concern the Council. The Serbs obviously have little respect forUNPROFOR’s authority.’© Van Diepen Van der Kroef Advocaten page 61 of 99

137. It was known at the UN – and by the State of the Netherlands – that a genocide threatenedin Srebrenica even before Dutchbat was despatched to Srebrenica. The UN expected alreadyin 1993 that genocide would be committed in Srebrenica. The purpose of setting up theSrebrenica Safe Area was precisely the prevention of genocide. Moreover, as appears fromthe UN Report of 30 April 1993 cited above, the Bosnian Serbs had no respect at that timefor the UN and their resolutions. The UN and the State of the Netherlands accordingly knewalready in 1993 that they could not trust that the Bosnian Serbs would respect the SafeArea. They knew that the inhabitants of the Safe Area needed protection against thethreatened genocide.138. The ICJ also held in its ruling of 26 February 2007, under legal consideration 438, that theclimate of ingrained hate between the population groups was known and that:‘(…) given all the international concern about what looked likely to happen at Srebrenica,(…), it must have been clear that there was a serious risk of genocide in Srebrenica.’139. Genocide occurred in Srebrenica and the UN and the State of the Netherlands did not doenough to prevent that genocide despite the knowledge of the UN and the State of theNetherlands that such genocide threatened. As a result, the UN and the State of theNetherlands have breached international law. The United Nations and the State of theNetherlands indeed acted contrary to the principal rule of the Genocide Convention,namely, the prevention of genocide. That is an entirely different principal rule than thattaken by the District Court as a startingpoint, namely, punishment and not oneselfcommitting genocide.Enforcing the norm of the Genocide Convention140. The District Court held under legal consideration 5.19 that neither the GenocideConvention, nor any other treaty, nor customary international law or the practice of statesgave a ground for an obligation on the Netherlands Court to uphold the norms of theGenocide Convention by way of a civil action.141. The Association et al. for the moment points out that the reference by the District Court tocustomary international law or the practice of states comes across somewhat cynically.There are no precedents for the present case. A practice can be confirmed only when© Van Diepen Van der Kroef Advocaten page 62 of 99

similar cases are brought before the court. The caselaw of the European Court of HumanRights shows very positively that in relatively less serious cases of violations of humanrights, such as acting contrary to the prohibition on torture within the meaning of Article 3ECHR, enforcement of the norm by way of civil proceedings does occur. The Association etal. refers to the ruling of the European Court of Human Rights of 21 November 2001 in thecase of Al-Adsani v. the UK (no. 35763/97). The Association et al. will address in detail thatruling in the context of the following ground of appeal.In anticipation thereof it is observed that in that case the immunity of the State of Kuwaitwas upheld because a legal remedy existed in Kuwait. It was actually self-evident for theEuropean Court of Human Rights that the prohibition on torture created a directlyenforceable right for the individual citizen.Enforcement of the norm by the individal142. The District Court observed that the ICJ in its ruling of 26 February 2007 made no mentionof any obligation on States to enforce the Genocide Convention by way of a civil action.There was no reason for any such consideration by the ICJ with the result that noconclusions can be drawn therefrom for the present case. The ruling concerned in fact aclaim by one state against another.143. Some provisons in treaties give – irrespective of the wording of the provision in question –the posibility to invoke them directly. In this case it concerns the most important provisionof the most important treaty, namely, the obligation under Article 1 of the GenocideConvention to use all means to prevent genocide. The Association et al. has the right to suethe government, a state or the organization that represents all the world’s states in respectof their obligation under that Article. The obligation to prevent genocide would degenerateinto an empty shell if it were to be dependent on the benevolence of a state to implementthe obligation in question by application to the ICJ. The fact that Bosnia-Herzegovina failedto apply to the ICJ must not entail that the State of the Netherlands and the United Nationsget away with violation of the principal obligation of the Genocide Convention. It is ratherthe (groups of) citizens who rightly should be protected against genocide and not the statesor the UN or both. A personal right in the citizens ensues therefore from the GenocideConvention.© Van Diepen Van der Kroef Advocaten page 63 of 99

144. It is established as a result of research by the CAVV and the UN that it is not only states onboth sides that can institute an action on the ground of norms of international law;individuals also can institute an action against states and the UN on the ground of norms ofinternational law. The CAVV concluded that an exception exists to the principle that only astate can institute an action on the ground of international law.This exception operates in respect of norms of international law that accord direct rights toindividuals under international law. In this category fall, inter alia, norms of human rights(see CAVV Report, no. 3.5).145. The UN also appointed independent experts to research the problematic of theimplementation of the rights of the individual. These experts spent fifteen years conductingthis research. During that research Member States of the UN, international organisations andNGOs were consulted. The research led to the UN Resolution of 16 December 2005 (Number60/147) ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation forVictims of Gross Violations of International Human Rights Law and Serious Violations ofInternational Humanitarian Law’ (hereafter: ‘Basic Principles’). The Basic Principles arebased, inter alia, on Article 8 of the Universal Declaration of Human Rights (UDHR). Thisright to an effective legal remedy arises also from Article 6 ECHR (see A. Reinisch, in R.Hofmann et al., Die Rechtskontrolle von Organen der stateengemeinschaft, 2007, page 85)and Article 2 paragraph 3 sub a I CCPR.146. The UN recommends the Member States under Article 2 of the Basic Principles to implementthe directives and to apply them in the caselaw and is formulated as follows:‘Recommends that States take the Basic Principles and Guidelines into account, promoterespect thereof and bring them to the attention of members of the executive bodies ofgovernment, in particular law enforcement officials and military and security forces,legislative bodies, the judiciary, victims and their representatives, human rights defendersand lawyers, the media and the public in general.’147. With a view to ensuring the implementation of the Basic Principles by the Member States,Article I, number 2 sub b, c and d of the Basic Principles provides that the Member States ofthe UN must ensure under international law that they do the following:© Van Diepen Van der Kroef Advocaten page 64 of 99

‘(b) Adopting appropriate and effective legislative and administrative procedures and otherappropriate measures that provide fair, effective and prompt access to justice;(c) Making available adequate, effective, prompt and appropriate remedies, includingreparation, as defined below;(d) Ensuring that their domestic law provides at least the same level of protection forvictims as that required by their international obligations.’148. Article II, number 3, under c and d of the Basic Principles lays down the extent of theobligations of the Member States. The Member States have the obligation to:‘(c) Provide those who claim to be victims of a human rights or humanitarian law violationwith equal and effective access to justice, as described below, irrespective of who mayultimately be the bearer of responsibility for the violation;and(d) Provide effective remedies to victims, including reparation, as described below.’149. Article V, number 8 of the Basic Principles defines the concept of victim:‘(…) victims are persons who individually or collectively suffered harm, including physicalor mental injury, emotional suffering, economic loss or substantial impairment of theirfundamental rights, through acts or omissions that constitute gross violations ofinternational human rights law, or serious violations of international humanitarian law. (…)the term “victim” also includes the immediate family or dependants of the direct victim(…).’It is incomprehensible that the State of the Netherlands has manifestly shown that itconsiders the postulated obligation under section 2 of the Convention so much moreimportant than these international law and treaty obligations.150. The six thousand surviving dependants (whose interests are promoted by the Association)are victims within the meaning of the Basic Principles. As shown above and in the originatingwrit of summons at first instance, they, alternatively, their murdered families, are thevictim of gross violations of human rights and of international humanitarian law.© Van Diepen Van der Kroef Advocaten page 65 of 99

151. The Basic Principles provide that individuals who are the victim of a gross violation of humanrights or of international humanitarian law can enforce their rights equally as a state underinternational law. The Member States must ensure that victims have equal access to allappropriate legal remedies in order to be able to exercise their rights. See Article VIII,number 12 through 14 of the Basic Principles which provides that:‘A victim of a gross violation of international human rights law or of a serious violation ofinternational humanitarian law shall have equal access to an effective judicial remedy asprovided for under international law. (…) Obligations arising under international law tosecure the right to access justice and fair and impartial proceedings shall be reflected indomestic laws. To that end, States should:(…)(d) Make available all appropriate legal, diplomatic and consular means to ensure thatvictims can exercise their rights to remedy for gross violations of international humanrights law or serious violations of international humanitarian law.’Under Article VIII, number 13 of the Basic Principles a Member State must ensure that notonly individuals but also groups of victim can enforce their rights. The Associationconstitutes a group of victims within the meaning of Article VIII number 13 of the BasicPrinciples.152. This case concerns a very large group of victims of gross violations of human rights, such asthe right to life and to humanitarian aid. Moreover, the mandate of the UN included theprotection of human rights. The resolutions adopted by the Security Council ordered theprotection of the Safe Area and of the civilians in that area. Given that the object of theresolution was the protection of human life, UN Resolutions 836 and 844 also give directrights to individuals.153. Both the CAVV Report and the Basic Principles lead to the result that the Association et al.can enforce its rights derived from international law before the Netherlands Court. As thatapplies to gross violations of human rights, it applies all the more to the violation of theobligations under the Genocide Convention.The Association et al. has a claim against the UN and the State of the Netherlands underinternational law as the norms of international law that have been breached confer directrights on the individual (see CAVV Report, nos. 3.5.1 and 3.5.2).© Van Diepen Van der Kroef Advocaten page 66 of 99

154. The Basic Principles provide also that victims have a right to compensation whererestoration of the situation prior to the injury-causing facts is not possible. Compensationcan be awarded for, inter alia, physical or mental harm, lost opportunities, includingemployment, education and social benefits. Compensation can also be awarded for materialdamage and loss of earnings and for moral damage (see Article IX, number 20 of the BasicPrinciples). Given the above the UN and the State of the Netherlands should paycompensation to the Association et al. under international law. A court with jurisdiction isobviously necessary for that, without which no right can be enforced.155. In addition to the Basic Principles discussed above the Association et al. refers to Article 93of the Netherlands Constitution in connection with the possibility as an individual toentitlement under provisions of international treaties. Article 93 of the Constitutionprovides:‘Provisions of treaties and of resolutions by international institutions, which may bebinding on all persons by virtue of their contents shall become binding after they have beenpublished.’This direct applicability of international treaties in the Netherlands legal order is ofimportance where the international treaties also contain self-executing provisions. ‘Selfexecutingprovisions’ are provisions that have binding force on civilians (private persons),including legal persons under private law (see J.W.A. Fleuren, Tekst & Commentaar,Grondwet, 2004, Article 93 number 3). Whether an international treaty contains a selfexecutingprovision is exclusively for the judgment of the Netherlands Court (see F.M.C.Vlemminx and M.G. Boekhorst, De Grondwet, 2000, Article 93 number 7; J.W.A. Fleuren, op.cit., number 4 under reference to the relevant Parliamentary papers; P. van Dijk and B.G.Tahzib in S.A. Riesenfeld and F.M. Abbott, Parliamentary Participation in the Making andOperation of Treaties, 1994, page 113).156. The self-executing character of such provisions in international treaties must be tested bythe Netherlands Court as a matter of fact. In the present case the Genocide Convention, theGeneva Conventions and the ECHR have found their way into the Netherlands legal systemas international treaties via Article 93 of the Netherlands Constitution. The Genocide© Van Diepen Van der Kroef Advocaten page 67 of 99

Convention and the Geneva Conventions were brought into being precisely to protectcivilian populations, and thus also individual civilians, from outrages. The same applies toArticle 2 paragraph 1 ECHR and Article 6 paragraph 1 of the I CCPR, which primarily concernthe protection of the individual.157. The fact that the state of Bosnia-Herzegovina could itself also bring claims against the UNand the State of the Netherlands does not concern the Association et al. in the presentdispute. After all, the state of Bosnia-Herzegovina has in the past fourteen years notinstituted any claim and has to the present given no indication of any such intention.158. Besides a direct right under the treaties cited above it is also the case that the treaties inquestion also in part determine what is unlawful and what is not, and thus influence thenorm of Article 6:162 paragraph 2 BW. Article 6:162 paragraph 2 BW reads:‘The violation of a right and an act or omission violating a statutory duty or a rule ofunwritten law pertaining to proper social conduct shall be deemed to be an unlawful actunless there exists a ground of justification.’It was set out repeatedly above how the State of the Netherlands and the United Nationsviolated the rights of the Association et al. (alternatively, the rights of the persons whoseinterests the Association promotes). The District Court failed to address the fact that afailure to prevent genocide is without doubt not something that pertains to proper socialconduct. We are concerned here after all with the military under a particular obligation toprotect the population of the Safe Area.159. In the light of Article 6:162 paragraph 2 BW (Dutch Civil Code) it is of concern that criminallaw provisions or provisions in treaties that impose specific obligations of states are virtuallynever incorporated literally into the civil code. That does not nullify the fact that conductcontrary to criminal law provisions can certainly give rise to grounds of liability under civillaw. The Burgerlijk Wetboek (Civil Code of the Netherlands) does not prohibit causing harmto another. Causing harm to another is however unlawful under the civil law and gives riseto an obligation to provide compensation therefor. Unlawfulness leads to liability. What isunlawful is determined by acting or failing to act in violation of a statutory duty or a rule of© Van Diepen Van der Kroef Advocaten page 68 of 99

unwritten law pertaining to proper social conduct. The Genocide Convention is certainly ofthe greatest possible importance for the interpretation of those norms.Ground of appeal 12160. The District Court erroneously considered under legal consideration 5.20 that:‘In its judgment of November 21, 2001 the European Court of Human Rights ruled in thecase of Al-Adsani v. the UK (No. 35763/97) that there is no scope for any encroachment onthe immunity that in principle exists of a national state, in that case Koewait, in thecontext of a civil action alleging violation of the prohibition on torture laid down inArticle 3 ECHR. As there is no evidence that the European Court for Human Rightssubsequently departed from this line the Court concludes that there is no generallyaccepted norm in international-law practice on the basis of which current immunities allowexception, within the framework of enforcement in civil law, of the norms of ius cogens,like the prohibitions on genocide and torture. That the issue in this case was therelationship between state immunity and the prohibition on torture and not therelationship between the immunity of international organizations and the prohibition ongenocide does not lead to a different opinion in the present case. Just as there is no basisfor a hierarchy between different types of immunity, so there are no grounds for ahierarchy between different norms of ius cogens.’Explanation of ground of appeal 12161. It is incomprehensible that the District Court cites a case that concerns the immunity of astate in support of its decision that the United Nations enjoys immunity. The District Courthad indeed already held under legal consideration 5.11 that the immunity of states differedstrongly from the immunity of international organisations and that no form of hierarchyexisted between the two forms of immunity. Given the correctness of that determinationcan the judgment that a state also enjoys immunity in the event of violation of ius cogensnot also draw the conclusion that the same would apply to an international organisation.Quite apart from the fact that the District Court incorrectly and incompletely interprets the© Van Diepen Van der Kroef Advocaten page 69 of 99

uling of the European Court of Human Rights in Al-Adsani (to which the Association et al.will return below), it is precisely on the point of access to law that there emerges now afundamental divergence between the immunity of states and that of internationalorganisations. That divergence resides in the fact that the court of the state against whichan action is brought (in the case of Al-Adsani/Koewait) has jurisdiction. In the case of aninternational organisation there is no such national court with jurisdiction and that is whyinternational organisations have an obligation under international law to establish a legalremedy. In the case of the United Nations that obligation is laid down in section 29 of theConvention. Where another court has jurisdiction, a court may more quickly come to thejudgment that it lacks jurisdiction (see: Van der Plas, De taak van the Court en het IPR, p.265). The immunity of a state can in such case be maintained.162. There are certain rules of international law that are so important that in the event of aconflict between them other rules of international law have to yield. This higher form of lawis termed ius cogens. The District Court gives the appearance erroneously and withoutsubstantiation in law that immunity should be a form of ius cogens. The District Court heldthat there was no ground to uphold a hierarchy between different types of ius cogens. TheDistrict Court thereby implied that as a result immunity should be ius cogens. Thatimplication is unsupportable on the basis of literature and caselaw.163. The prohibition on genocide is ius cogens (see J.A. Frowein, Encyclopedia of PublicInternational Law, Volume Three, 1997, page 67). The Association et al. is conscious thatthe UN did not itself commit the genocide. The issue in this regard is the question whetherthe UN failed in its obligation under the Genocide Convention to prevent genocide.There is besides an issue of ius cogens with the violation of other human rights, such astorture, murder and rape. It was foreseeable in July 1995 that all those human rights wouldbe violated when at that time the UN failed in its undertaking to provide protection (seefurther numbers 408 through 411 in the writ of summons and the sources cited there).164. For a clear understanding of the issues the Association et al. will address more fully thejudgment of the European Court of Human Rights in the Al-Adsani Case, a case that alsorelates to the interpretation of ius cogens. The plaintiff was a citizen of the State ofKoewait who instituted an action for damages in the United Kingdom against the State ofKoewait alleging responsibility on the part of the State of Koewait for his torture andclaiming damages for the resulting physical and emotional injuries. The legal issue before© Van Diepen Van der Kroef Advocaten page 70 of 99

the European Court of Human Rights was whether the English court was correct in holdingthat immunity was attached to the State of Koewait.165. What is remarkable is that the European Court of Human Rights dismissed the appeal toArticle 6 ECHR and upheld the immunity of the State of Koewait by the smallest possiblemajority of the judges, namely, nine against eight. That indicates already that the absolutecharacter of the immunity of states is debatable under certain circumstances.166. That statement is illustrated by the various dissenting opinions in the judgment. Beforeproceeding deeper into those the Association et al. again presents the ratio decidendi of thedecision (see legal consideration 66):‘The Court, while noting the growing recognition of the overriding importance of theprohibition of torture, does not accordingly find it established that there is yet acceptancein international law of the proposition that States are not entitled to immunity in respectof civil claims for damages for alleged torture committed outside the forum State.’The use of two words in this ratio is noticeable. First, the word, ‘yet’, whereby theEuropean Court of Human Rights indicates that the passage of time might or even will leadto another view. Secondly, the word, ‘States’ in relation to the fact that immunity remainslimited to the court outside the territory of state in question.Al-Adsani could have sued Koewait in that country, in which event Koewait could not haveinvoked immunity. The Association et al., as already said, fails to perceive any suchalternative in this case.167. The dissenting opinions make it abundantly clear that in certain cases the granting ofimmunity for states is under considerable pressure and should yield to the interests of thecitizen whose rights have been violated. In the dissenting opinion of Judge Loucaides it wassaid:‘In view of the absolute nature of torture it would be a travesty of law to allow exceptionsin respect of civil liability by permitting the concept of State immunity to be relied onsuccessfully against a claim for compensation by any victim of torture. The rationalebehind the principle of international law that those responsible for atrocious acts of© Van Diepen Van der Kroef Advocaten page 71 of 99

torture must be accountable is not based solely on the objectives of criminal law. It isequally valid to any legal liability whatsoever.’(…)‘In my opinion, they (addition by counsel: the relevant immunities) are incompatible withArticle 6 § 1 in all those cases where their application is automatic without a balancing ofthe incompeting interests as explained above.’168. The joint dissenting opinion of six other judges of the European Court of Human Rights(including the President) provide a clear insight into the legal reasoning that should befollowed in respect of states. All the judges agreed that the prohibition on torture is iuscogens (see legal considerations 60-61). In other words, this rule is a peremptory rule ofinternational law (see Kooijmans, op. cit., page 18). According to the dissenting opinion, inthe event of conflict between a rule that is ius cogens and another rule of international law(such as immunity), that other rule must yield (see legal consideration 1 of the dissentingopinion):‘In the event of a conflict between a jus cogens rule and any other rule of internationallaw, the former prevails. The consequence of such prevalence is that the conflicting rule isnull and void, or, in any event, does not produce legal effects which are in contradictionwith the content of the peremptory rule.’169. The following conclusion follows then from this rule of precedence (see legal consideration 3of the dissenting opinion):‘The acceptance therefore of the jus cogens nature of the prohibition of torture entailsthat a State allegedly violating it cannot invoke hierarchically lower rules (in this case,those on State immunity) to avoid the consequences of the illegality of its actions.’170. Besides the fact that it follows from the dissenting opinion that in the event of a greaterviolation of the ius cogens rule there is a great likelihood that a possible immunity wouldhave to yield, that also follows literally from the judgment itself. The European Court ofHuman Rights has explained in fact under legal consideration 55 that a balancing must beundertaken. It must be determined whether the limitation of Article 6 ECHR is proportionatein relation to the object that is sought to be effected with immunity. There is thus a clear© Van Diepen Van der Kroef Advocaten page 72 of 99

issue of a hierarchy between the different norms of ius cogens. It is therefore obvious thatas a result in the event of a greater violation or a violation of the weightier norms of iuscogens the hierarchically lower rule of immunity must first yield. The Association et al.points out the distinction between the torture of an individual (as in the Al-Adsani Case) andthe genocide of 10,000 persons that the State of the Netherlands and the UN did notprevent. The grounds underlying the decision in the judgment of the European Court ofHuman Rights and the dissenting opinion lead to the conclusion that in the case of theprohibition on genocide being a rule of ius cogens, the European Court of Human Rights willdecide that the immunity of a state would be subordinated to the rights of the individual.171. For that matter, the fact that immunity was accepted in the Al-Adsani Case (by nine of theseventeen judges) has been severely criticised (see for example A. Orakhelashvili, StateImmunity and International Public Order Revisited, German Yearbook of International Law2006, pages 327 through 365). According to the author cited there should be a hierarchy ofnorms and there should be no absolute inviolability (immunity) of states. The judgment inthe Al-Adsani Case is seen as a violation of the right that should be safeguarded by Article 6ECHR (see Orakhelashvili, op. cit., page 347):‘The Al-Adsani treatment of Art. 6 is incompatible with the principle repeatedly affirmedin the ECHR’s jurisprudence, that the Convention must be interpreted so as to make itssafeguards practical and effective, and not illusory.’(…)‘All these considerations demonstrate that Al-Adsani is an inconsistent and badly reasoneddecision that was not worth following in subsequent cases.’172. The conclusions drawn by the District Court on the basis of the Al-Adsani judgment go muchfurther than is justified by the judgment. Al-Adsani concerns the immunity of a state whereanother court had jurisdiction to hear the action brought against that state. The EuropeanCourt of Human Rights judged only on ius cogens on the basis of the violation of Article 3ECHR alleged in that case, the prohibition on torture. The conclusion of the District Courtthat no generally accepted norm exists on the ground of which applicable immunitiesexceptionally lead in the framework of civil law to enforcement of the norms of ius cogens© Van Diepen Van der Kroef Advocaten page 73 of 99

is in that connection incorrect. The present case concerns after all the immunity of aninternational organisation and violation of the norms arising under the prohibition ongenocide (beside numerous other norms for the protection of human rights).173. The District Court has erroneously not drawn a distinction between the position of a stateand that of an international organisation. In addition, the District Court erroneously drawsno distinction between the different forms of ius cogens. The District Court should have heldthat given the fact that the immunity of the United Nations has the purpose of preventingviolations of human rights, the relation between the prohibition on genocide as ius cogensand immunity is entirely different than in the Al-Adsani Case. In that case it was notgenocide that was at issue but the torture of an individual.174. There is no higher norm in international law than the prohibition on genocide. Itsenforcement is an important reason for the existence of international law and the mostimportant international organisation, the UN. That entails that where genocide has not beenprevented no immunity attaches to the international organisation. No greater recriminationcan be made indeed of an international organisation, except the actual commission ofgenocide.That is irreconcilable with the functional character of the immunity of the UN. The DistrictCourt should have concluded that there was a violation of ius cogens and the interests of theAssociation et al. weighed more heavily than the interest of the UN in immunity. Thedecision that the immunity of the United Nations is absolute would mean that the UnitedNations had an absolute power and was not subject to the rule of law, the principle that nooneis above the law and that power is limited and regulated by the law. The DistrictCourt’s judgment rejects that principle. A limitless immunity of the United Nations isunacceptable and undermines the credibility of the United Nations as the important fighterfor human rights.175. The Association et al. is with the above of the view that in these proceedings the Secretary-General of the United Nations had the obligation to waive any possible right to immunity.Indeed, a similar rule is contained in the Convention in various Articles dealing with theimmunity of Member States, officials and experts (see Articles 14, 20 and 23), to the effectthat a review should be conducted to ascertain whether the course of the law is impeded by© Van Diepen Van der Kroef Advocaten page 74 of 99

any grant of immunity. Should that interference not damage the interests of the UnitedNations, the claim to immunity should yield. The Association et al. wonders how giving anaccount of the non-prevention of genocide could damage the interests of the UnitedNations. One of the primary interests of the United Nations is after all the prevention ofgenocide as a peremptory norm of international law (ius cogens). The consideration by theDistrict Court that it is not for the District Court to prioritise conflicting norms ofinternational law, fails to understand the significance of the peremptory character of iuscogens in its relationship to the prohibition on genocide and the serious violation of humanrights, in relation to the subordinate international law concept of immunity of the UnitedNations.Ground of appeal 13176. The District Court erroneously considered under legal consideration 5.21 that:‘The Court concludes from what it stated in 5.18-5.20 that no grounds can be derived fromthe the Genocide Convention or similar mandatory international-law norms alligned withit, such as the prohibition on torture, for an exception to the norm referred to above ofthe UN’s absolute immunity. This means that the Court does not get to a prioritizing ofconflicting international-law norms. There is no scope for a weighing of interests such as isadvocated by the Association et al.’Explanation of ground of appeal 13177. Legal consideration 5.21 is a summary of earlier legal considerations of the Court andcontains no supportive components of the reasoning. That does not obviate the fact thatwhat the District Court considers as pertinent is incorrect. The Association et al.refers towhat has been asserted in the above grounds of appeal, in particular the grounds of appealrelating to legal considerations 5.18 through 5.20 and the explanations thereto.© Van Diepen Van der Kroef Advocaten page 75 of 99

Ground of appeal 14178. The District Court erroneously considered under legal consideration 5.22 that:‘The Court arrives at the same conclusion with regard to the right of access to a court oflaw safeguarded in Article 6 ECHR, a fundamental element of the right to a fair trial. Thecaselaw of the ECHR offers insufficient grounds for an interpretation of Article 6 ECHR inthe sense that in this respect it prevails over international immunities. The right of accessto a court of law is largely dependent on existing international-law obligations for itssubstance and purport.This applies in particular and in any case with respect to obligations towards the UN, as isevident from the judgments of the European Court of Human Rights dated May 31, 2007 inthe cases of Behrami v. France (no. 714/01) and Saramati v. France, Germany and Norway(no. 78166/01). In these cases the European Court of Human Rights ruled that the ECHRshould not be an impediment to the effective implementation of duties by internationalmissions in Kosovo under UN responsibility. By virtue of this, states cannot, according tothe Court, be held liable for the actions of national troops they made available forinternational peace-keeping missions. The Court concludes that this same ratio implies thatArticle 6 ECHR cannot be a ground for exception to – as said before, absolute – immunityunder international law of the UN itself. The UN therefore cannot be brought before adomestic court simply on the grounds of the right of access to a court of law guaranteed inArticle 6 ECHR.’179. The District Court has further erroneously considered under legal consideration 5.23 that:‘The Court is aware of the existence of ostensibly conflicting jurisprudence of the EuropeanCourt of Human Rights in the judgments of 18 February 1999 in the cases of Beer and Reganv. Germany (no. 26083/9) and Waite en Kennedy v. Germany (no. 26083/94). In thesejudgments the court expressed its concern that the founding of international organizationsand their corresponding immunities could be at the expense of the protection of humanrights.States may not, according to the Court, evade their obligations under the ECHR bytransferring their powers to international organisations. The Court thus appears to beadopting the view that the immunities of international organisations are compatible with© Van Diepen Van der Kroef Advocaten page 76 of 99

Article 6 ECHR only if the institutions involved offer a reasonable alternative for protectionof human rights under the ECHR. If this is not the case the ECHR prescribes that theimmunities nvoked by the international organisation are not to be respected.’180. The District Court has further erroneously considered under legal consideration 5.24 that:‘The Court does not consider it necessary in the light of this jurisprudence to investigatewhether an alternative remedy is available to the Association et al. at the UN. The Courtconsidered on this as follows. The UN was founded before the ECHR came into force. Therecan be no question therefore of a restriction of the protection of human rights under theECHR by transfer of powers to the UN. Moreover, the UN is an organisation with, as saidbefore, an almost universal membership. The international organisation that thejudgments in Beer and Regan v. Germany en Waite and Kennedy v. Germany related to,namely, the European Space Agency, was founded in 1980 and therefore some considerabletime after the entry into force of the ECHR. This organisation has a restricted – European –membership. The UN’s position therefore is very dissimilar to it. The ECHR has actuallytaken the special position of the UN as a point of departure in the aforementioned cases ofBehrami v. France and Saramati v. France, Germany and Norway. All this justifies theconclusion that motivations of the European Court of Human Rights in the cases of Beer andRegan v. Germany and Waite and Kennedy v. Germany do not apply to the UN. It deservesspecial mention that if this were the case, under the ECHR as a result of the primacy ofinternational-law immunities it is primarily that state that would be liable for not allowingaccess to a court of law within whose territory the institution in question has its seat orthe asserted wrongful act was committed. In the present case this is certainly not theNetherlands.’Explanation of ground of appeal 14181. Ground of appeal 14 addresses itself to the judgment of the District Court on the meaningand review of Article 6 ECHR and the grounds for that judgment.182. The Court correctly held under legal consideration 5.22 that the right of access to the courtlaid down in Article 6 ECHR is a fundamental right. It is incomprehensible that the Courtthen proceeds with little ceremony to hold that this fundamental right should yield beforeinternational law immunity. The judgment that holds that a human right – laid down in the© Van Diepen Van der Kroef Advocaten page 77 of 99

human rights treaties, ECHR and ICCPR – should yield is erroneous. The judgment directlycontradicts the text of Article 6 ECHR and Article 14 ICCPR, Articles that impose norestrictions on the right of access to the court. The Association et al. points out that theright to life in Article 2 ECHR is subject to an added proviso (‘save in the execution of asentence of a court following his conviction of a crime for which this penalty is provided bylaw’), as well as the rights to liberty and the right to respect for private and family life(‘such as in accordance with the law and is necessary in a democratic society’ etc.). Theright of freedom of expression is similarly restricted.The right of access to the Court is however not subject to any restrictions and the Courtholds contrary to Article 6 ECHR and Article 14 ICCPR by attaching these restrictions. Suchan unrestricted access is just and necessary. The law – including hereunder also the ECHRitself – is an empty shell if access to the court is not safeguarded. The greater and morepowerful the opposite party is, so the need for protection of the citizens and theirfundamental rights should weigh more heavily. The District Court has demonstrated anerroneous consideration in respect of Article 6 ECHR.183. The District Court has underpinned its reasoning under legal considerations 5.22, 5.23 and5.24 by addressing the caselaw of the European Court of Human Rights, insofar as thatrelates to the immunity of states (legal consideration 5.22) and international organisations(legal consideration 5.23). The Association et al. will address both the judgments of theEuropean Court of Human Rights, as well as the relevant caselaw that the District Court didnot address. All this should have led to a different decision than the one reached by theDistrict Court.Caselaw of the ECHR: immunity of states184. The District Court discussed under legal consideration 5.22 the judgments of the EuropeanCourt of Human Rights of 31 May 2007 in the Case Berahmi against France (no. 71412/01)and Saramati against France, Germany and Norway (no. 78166/01).185. The Association et al. repeats here its position taken at first instance regarding the caselawcited. It does not follow from the caselaw that the Dutch Court may not judge the extent towhich the UN has failed in securing international peace and security. The case citedconcerns the question to whom must be attributed the conduct of the national contingentsin an UN mission. The case concerns states and says nothing on the immunity of the UN or© Van Diepen Van der Kroef Advocaten page 78 of 99

the functional necessity for that immunity. The case cited is therefore not relevant in theframework of the motions in the incidents. Even the United Nations itself, that may expressits view in the framework of the present proceedings, mentioned nothing in its explanation(compare Chapter ‘the submission of third parties’, under point 8) over immunity.186. The judgment regarding Berahmi and Saramati of the ECHR states merely that the stateswho were sued, as suppliers of UN troops, could not be sued. It concerns therefore theattribution of possibly unlawfully conduct in the UN context, conduct that in this case mustbe attributed according to the European Court of Human Rights to KFOR (legal consideration141). The European Court of Human Rights emphasized with that besides that there wasmuch scope to consider the circumstances in each case (legal consideration 151). There wastherefore no general rule given by the European Court of Human Rights for the attribution.The District Court manifested no such weighing of the circumstances of the case (eventhough a weighing or judgment of the attribution was not yet in issue). Whatever may bethe case, Article 6 ECHR was not relevant in the decision in question. Behrami and Saramatibrought actions against states, whereas they probably should have sued the internationalorganisation. Article 6 ECHR is not intended to offer protection against such a situation.Article 6 ECHR safeguards only access to the court. Article 6 ECHR does not guarantee thatthe party sued is the proper party.187. The judgment here discussed is also of an entirely different order than the present case. Itis recorded under point 17 of Chapter III (the circumstances of the Saramati Case) that:‘On 9 October 2002 the Supreme Court of Kosovo quashed Mr Saramati’s conviction and hiscase was sent for re-trial. His release from detention was ordered. A re-trial has yet to befixed.’The right of access to the court under Article 6 ECHR was not further reviewed because –contrary to what the the District Court evidently intended – that right was not in issue, andheedful of the quote above was also sufficiently safeguarded as such access to the court wasprovided in Kosovo. The European Court of Human Rights in the cases concerned gavemerely a general appraisal of the attribution in that case (see legal consideration 149:)‘Since operations established by UNSC Resolutions under Chapter VII of the UN Charter arefundamental to the mission of the UN to secure international peace and security and since© Van Diepen Van der Kroef Advocaten page 79 of 99

they rely for their effectiveness on support from member states, the Convention can not beinterpreted in a manner which would subject the acts and omissions of Contracting Partieswhich are covered by UNSC Resolutions and occur prior to or in the course of such missions,to the scrutiny of the Court.To do so would be to interfere with the fulfilment of the UN’s key mission in this fieldincluding, as argued by certain parties with effective conduct of its operations.’The consideration cited relates to the interpretation of the ECHR and gives no judgment onthe issue whether the immunity of the United Nations must yield before obligations arisingunder human rights treaties or obligations under the Genocide Convention. The EuropeanCourt of Human Rights made it clear on several ocassions that the cases of Behrami andSaramati contrasted sharply with other cases decided by the European Court of HumanRights. It is thus at least premature to attach more far-reaching consequences to thesejudgments than is justified by the case itself. The Association et al. points out once morethat the present case is of a totally different order. This case transcends the individualinterest and touches the essence of international obligations for the protection of humanrights and the prohibition on genocide.188. Itis not stated anywhere in the judgments of the European Court of Human Rights regardingBehrami and Saramati – contrary to what the District Court held - that the ECHR should raiseno impediments to an effective implementation of the duties of international missions inKosovo under the responsibility of the United Nations. Quite apart from that, Article 6 of theECHR constitutes no impediment in the present proceedings to the task that was thencarried out in Srebrenica. The District Court did not make clear where such impedimentwould reside if the Association et al. were to be granted access to the Court.Implementation of the mission in Srebrenica failed – as may be inferred from the originatingwrit of summons – and its implementation is no longer susceptible of influence by legalproceedings ex post facto. Even the United Nations has held in its report that they were noteffective in their implementation of the mission. In the present case it would serve littlepurpose to question whether, and if so, which consequences should arise under civil andinternational law of the ineffective implementation of the mission. Moreover, if forwhatever reason a review had been conducted and if the United Nations had fulfilled theobligations arising under Section 29 of the Convention, it evidently would not have impededthe implementation of the mission, alternatively the review would have been found to bemore important than any possible impediments. Article 6 ECHR is involved first because the© Van Diepen Van der Kroef Advocaten page 80 of 99

United Nations has offered under Section 29 of the Convention no possibility of access to thecourt.189. In the closing sentence of legal consideration 5.23 the District Court considers that theUnited Nations could not be brought before the national court solely on the ground of theaccess to the court safeguarded by Article 6 ECHR. That conclusion certainly cannot bedrawn on the ground of the judgments of the European Court of Human Rights in Behramiand Saramati and taking Section 29 of the Convention into account.Caselaw of the ECHR: immunity of international organisations190. For a proper understanding of the European Court of Human Rights dated 18 February 1999in the Waite and Kennedy/Germany Case (no. 26083/94), which is also cited in the writ ofsummons (see point 456 et seq. of the writ of summons), the Association et al. brieflyrecalls the case. The judgment cited involved two employees of the European Space Agency,ESA, who were dismissed and brought a labour law dispute before the German court, whichheld that it did not have jurisdiction due to the immunity of ESA. The employees appealedagainst that judgment to the European Court of Human Rights, with reference to Article 6ECHR. The principal grounds for the judgment of the European Court of Human Rights are(see legal considerations 67 and 68):‘It should be recalled that the Convention is intended to guarantee not theoretical orillusory rights, but rights that are practical and effective. This is particularly true for theright of access to the courts in view of the prominent place held in a democratic society bythe right to a fair trial.(…)‘For the Court, a material factor in determining whether granting ESA immunity fromGerman jurisdiction is permissible under the Convention is whether the applicants hadavailable to them reasonable alternative means to protect effectively their rights underthe Convention.’191. Subsequently the European Court of Human Rights held under legal consideration 69 thatthe immunity invoked by ESA prevailed only because an alternative effective legal remedyexisted. That implies that in the present case immunity could not be accorded as noalternative effective legal remedy against the UN is available to the Association et al. The© Van Diepen Van der Kroef Advocaten page 81 of 99

Association et al. will below further address the absence of an alternative effective legalremedy in this case.192. The District Court correctly recognised that according to the judgment of the EuropeanCourt of Human Rights states may not evade their obligations under the ECHR bytransferring powers to international organisations. The District Court did not refer to anyparticular legal consideration and it is very much the question whether that decision can betraced back to the cited judgment of the European Court of Human Rights. This evasion ofobligations under the ECHR is precisely what is happening in this case; the State of theNetherlands will not co-operate and refers to the United Nations. Then the State of theNetherlands asserts that the party it has refered to may not be sued on the ground ofimmunity. The District Court should never have followed that line of reasoning. The DistrictCourt goes on to say that the ECHR ‘appears’ to adopt the position that immunities ofinternational organisations are only reconcilable with Article 6 ECHR if a reasonablealternative remedy for protection of ECHR rights exists with the international organisationconcerned. By using the word ‘appears’ the District Court manifests an erroneous legalconsideration. The judgment of the European Court of Human Rights gives no cause toassume that the European Court of Human Rights has intended anything other than what wasexpressed in the judgment. The extension of the holding by the District Court should havebeen that the immunity of the United Nations in the present case is not reconcilable withArticle 6 ECHR and that the United Nations offered no reasonable alternative remedy for theprotection of the ECHR rights. After all, there has been no implementation of Section 29 ofthe Convention (for more than 60 years already). The District Court did not even addressSection 29 in this framework, which it should have done.193. At first instance and above the Association et al. has referred to the caselaw of the HogeRaad (highest court in the Netherlands). Where an alternative and effective legal remedy isabsent, the immunity of the international organisation should yield to the interests of theplaintiff (20 December 1985, NJ 1986, 438 (Spanish/Iran-United States Claims Tribunal). Inthat case it was further expressly held that the fact that the disputed conduct fell under thefunctional immunity posed no obstacle to the weighing of interests referred to above (seelegal consideration 3.3.5). Immunity was accorded in that case only because theinternational organisation in question provided an alternative and effective legal remedy(see legal consideration 3.3.6). In the judgment of the District Court The Hague, 28November 2001, NJkort 2002, 1, the Court also held that it had jurisdiction to hear the case© Van Diepen Van der Kroef Advocaten page 82 of 99

where an international organisation invoked its immunity but did not make available analternative effective legal remedy.Legal consideration 5.24194. The District Court elaborated further under legal consideration 5.24 on its earlier judgmentthat states may not evade their obligations under the ECHR by transferring powers tointernational organisations. The District Court held that there was here no question of anysuch limitation by transfer of powers as the United Nations were founded before the ECHRentered into force. This legal consideration is extremely mannered and appears to havebeen prompted by the desire of the District Court to maintain the immunity of the UnitedNations somehow or other. The District Court should have conducted a review on the basisof Article 6 ECHR and not by reference to a rule formulated by the District Court on thetransfer of powers. The District Court is now paying for the fact that it based itself on ajudgment that concerned attribution. In that case it was precisely states who were sued andnot the United Nations. Those states could not evade their responsibility by the transfer ofpowers but that is not the issue in the present case. It is the United Nations that are beingsued, after all. Nor is the consideration of the District Court correct that the legalconsiderations of the European Court of Human Rights regarding Waite and Kennedy do notapply to the United Nations.It is also incorrect to hold that the ECHR no longer applies because the United Nations werefounded before the ECHR entered into force. The following is of importance on this.195. The ECHR is not a treaty that fell out of the sky on the day of signature in November 1953.It is a codification of then current convictions of long standing concerning human rights. TheGovernments of the signatory States considered, inter alia:‘Considering the Universal Declaration of Human Rights proclaimed by the GeneralAssembly of the United Nations on 10th December 1948’and:‘that this Declaration aims at securing the universal and effective recognition andobservance of of the Rights therein declared’© Van Diepen Van der Kroef Advocaten page 83 of 99

And also:‘Reaffirming their profound belief in those fundamental freedoms which are thefoundation of justice and peace in the world and are best maintained on the one hand byan effective political democracy and on the other by a common understanding andobservance of the human rights upon which they depend.’196. It emerges from the above quotations that the ECHR is a codification of long-standing, deeprootedconvictions on human rights and democracy. Those convictions pre-date the theUnited Nations itself and the rights in question (including the right of access to the court)that are codified already existed at the founding of the United Nations. That is alsoexpressed, indeed, in the existence of section 29 of the Convention. The argument of theDistrict Court derived from the notion that the United Nations is older than the ECHR isconsequently erroneous. It is on the right of access to the court that the United Nations inpart derives its rationale and reason to exist.197. The District Court gives the appearance in its judgment as if older norms should havepriority over younger norms. That judgment has no foundation and is erroneous, and theDistrict Court also fails to underpin its judgment.198. The limitation that the District Court attaches to Article 6 ECHR on the basis of the fact thatthe United Nations is greater than the countries who are signatories of the ECHR is alsocontrary to the law. That limitation derives from an erroneous notion that the right isdetermined by the size of an organisation. That line of reasoning is the antithesis of theprotection of rights. The necessity for the legal protection of the citizen growsproportionately with the size of the concentration of power. It is not the power itself butthe person over whom the power is exercised who must be protected at law. That is theessence of fundamental human rights.Judgment of the ECJ regarding Kadi & Al-Barakaat© Van Diepen Van der Kroef Advocaten page 84 of 99

199. The European Court of Justice on 3 September 2008 pronounced a judgment, which is animportant judgment for the present case, on the relationship between UN Resolutions andthe fundamental rights arising under the EU Treaty, including thereunder Article 6 ECHR.The Association et al. will address this judgment at some length. The Association et al. willaddress in sequence the facts, the Advisory Opinion of the Advocate-General and thedecision of the Court at second instance. Stated briefly, the judgment entails first that thecommunity legal order is separate from obligations under international treaties, includingUN treaties and rules. Secondly, the judgment entails that Member States of the EuropeanUnion and its organs must review in respect of the fulfilment of international obligationswhether the basic rights of the citizens arising under the EU Treaty are safeguarded. Thatdemonstrates the incorrectness of the reasoning of the District Court.Facts200. The facts in the Case Kadi and Al-Barakaat (Court of Justice, dated 3 September 2008, CaseC-415/05 P, Al Barakaat International Foundation against Council of the European Union andCommission of the European Communities) are briefly given below.201. The Sanctions Committee of the Security Council of the United Nations designated Kadi andAl-Barakaat International Foundation as persons suspected of supporting terrorism, as aresult of which their funds and other financial resources were frozen. Kadi and Al-Barakatchallenged the legality of the order, whereupon the Council implemented the order tofreeze all property within the European Community. Kadi and Al-Barakaat argued, inter alia,that despite the intended aim of combatting international terrorism and the purpose of theUnited Nations to secure peace and security, the contested regulation violated a number offundamental rights. The Council and the European Commission adopted the position that theregulation was necessary for the implementation of binding resolutions of the SecurityCouncil and that accordingly the European Community judicature should refrain fromsubjecting this regulation to review for compatibility with fundamental rights. In effect,they asserted that when the Security Council spoke, the court should keep quiet.202. The State of the Netherlands intervened in the proceedings on the side of the Council andEuropean Commission. The State of the Netherlands argued before the Court of Justice thata resolution adopted by the Security Council,’ in principle escapes all review by theCommunity judicature, even concerning observance of fundamental rights, and so for that© Van Diepen Van der Kroef Advocaten page 85 of 99

eason enjoys immunity from jurisdiction’ (see paragraph 262 of the Judgment). Theposition of the State of the Netherlands also reappears in these proceedings. The DistrictCourt also gave its judgment in line with the grounds quoted. Both the Advocate-Generaland the Court of Justice gave short shrift to the position quoted.Opinion of Advocate-General to the Court of Justice of the EU203. Advocate-General M. Poiares Maduro expressed his view of the Al-Barakat Case in hisOpinion of 23 January 2008. The Opinion is instructive to read and presents a well-foundedview of the European Community legal order in relation to other international obligations.The Association et al. cannot here neglect to refer to the Advisory Opinion of the PublicProsecutor’s Department of 7 November 2007 and its Memorandum of Pleadings of 18 June2008. As was observed at the hearing of 18 June 2008 at the time of the rejoinder, theAdvisory Opinion of the Public Prosecutor’s Department should have had the character of alegal opinion. The Opinion of Advocate-General Poiares Maduro is a good example of such anopinion before a court: reasoned and conscious of the interests of both sides. In contrastwith that, the few pages submitted in these proceedings by the Public Prosecutor’sDepartment cannot withstand even the most minimal criticism. It is a one-sided documentin which the position of the State of the Netherlands and the United Nations is adoptedalmost literally but without any mention of the extensive reasoning of the Association et al.The Public Prosecutor’s Department has not only ignored the great importance of this case,which raises the issue of where the responsibility for allowing genocide lies, but also actedcontrary to the legal tradition governing the submission of an Advisory Opinion by the PublicProsecutor’s Department.204. As there is little to add to the Opinion of Advocate-General Poiares Maduro, the Associationet al. here cites a number of core considerations:‘21. The logical starting point of our discussion should, of course, be the landmarkruling in Van Gend en Loos, in which the Court affirmed the autonomy of theCommunity legal order. The Court held that the Treaty is not merely an agreementbetween States, but an agreement between the peoples of Europe. It consideredthat the Treaty had established a ‘new legal order’, beholden to, but distinct fromthe existing legal order of public international law. In other words, the Treaty has© Van Diepen Van der Kroef Advocaten page 86 of 99

created a municipal legal order of trans-national dimensions, of which it forms the‘basic constitutional charter’.‘24. All these cases have in common that, although the Court takes great care torespect the obligations that are incumbent on the Community by virtue ofinternational law, it seeks, first and foremost, to preserve the constitutionalframework created by the Treaty. Thus, it would be wrong to conclude that, oncethe Community is bound by a rule of international law, the Community Courts mustbow to that rule with complete acquiescence and apply it unconditionally in theCommunity legal order. The relationship between international law and theCommunity legal order is governed by the Community legal order itself, andinternational law can permeate that legal order only under the conditions set bythe constitutional principles of the Community.’‘32. Besides, the obligations under Article 307 EC and the related duty of loyalcooperation flow in both directions: they apply to the Community as well as to theMember States. The second paragraph of Article 307 EC provides that ‘the MemberState or States concerned shall take all appropriate steps to eliminate …incompatibilities’ between their prior treaty obligations and their obligationsunder Community law. To this end, Member States shall ‘assist each other … andshall, where appropriate adopt a common attitude’. That duty requires MemberStates to exercise their powers and responsibilities in an international organisationsuch as the United Nations in a manner that is compatible with the conditions setby the primary rules and the general principles of Community law. As Members ofthe United Nations, the Member States, and particularly – in the context of thepresent case – those belonging to the Security Council, have to act in such a way asto prevent, as far as possible, the adoption of decisions by organs of the UnitedNations that are liable to enter into conflict with the core principles of theCommunity legal order. The Member States themselves, therefore, carry aresponsibility to minimise the risk of conflicts between the Community legal orderand international law.’‘34. The implication that the present case concerns a ‘political question’, in respect ofwhich even the most humble degree of judicial interference would beinappropriate, is, in my view, untenable. The claim that a measure is necessary for© Van Diepen Van der Kroef Advocaten page 87 of 99

the maintenance of international peace and security cannot operate so as to silencethe general principles of Community law and deprive individuals of theirfundamental rights. This does not detract from the importance of the interest inmaintaining international peace and security; it simply means that it remains theduty of the courts to assess the lawfulness of measures that may conflict withother interests that are equally of great importance and with the protection ofwhich the courts are entrusted. (…)’‘35. Certainly, extraordinary circumstances may justify restrictions on individualfreedom that would be unacceptable under normal conditions. However, thatshould not induce us to say that ‘there are cases in which a veil should be drawn fora while over liberty, as it was customary to cover the statues of the gods’. Nor doesit mean, as the United Kingdom submits, that judicial review in those cases shouldbe only ‘of the most marginal kind’. On the contrary, when the risks to publicsecurity are believed to be extraordinarily high, the pressure is particularly strongto take measures that disregard individual rights, especially in respect ofindividuals who have little or no access to the political process. Therefore, in thoseinstances, the courts should fulfil their duty to uphold the rule of law withincreased vigilance. Thus, the same circumstances that may justify exceptionalrestrictions on fundamental rights also require the courts to ascertain carefullywhether those restrictions go beyond what is necessary. As I shall discuss below, theCourt must verify whether the claim that extraordinarily high security risks exist issubstantiated and it must ensure that the measures adopted strike a proper balancebetween the nature of the security risk and the extent to which these measuresencroach upon the fundamental rights of individuals’.‘37. It is certainly correct to say that, in ensuring the observance of fundamental rightswithin the Community, the Court of Justice draws inspiration from the case-law ofthe European Court of Human Rights. None the less, there remain importantdifferences between the two courts. The task of the European Court of HumanRights is to ensure the observance of the commitments entered into by theContracting States under the Convention. (…) The EC Treaty, by contrast, hasfounded an autonomous legal order, within which States as well as individuals have© Van Diepen Van der Kroef Advocaten page 88 of 99

immediate rights and obligations. The duty of the Court of Justice is to act as theconstitutional court of the municipal legal order that is the Community. (…)’‘38. The Council asserted at the hearing that, by exercising its judicial task in respect ofacts of Community institutions which have their source in Security Councilresolutions, the Court would exceed its proper function and ‘speak on behalf of theinternational community’. However, that assertion clearly goes too far. Of course,if the Court were to find that the contested resolution cannot be applied in theCommunity legal order, this is likely to have certain repercussions on theinternational stage. It should be noted, however, that these repercussions need notnecessarily be negative. They are the immediate consequence of the fact that, asthe system governing the functioning of the United Nations now stands, the onlyoption available to individuals who wish to have access to an independent tribunalin order to obtain adequate protection of their fundamental rights is to challengedomestic implementing measures before a domestic court. (…)’‘44. (…) However, the Court cannot, in deference to the views of those institutions(intended: such as the Security Council, addition of counsel),, turn its back on thefundamental values that lie at the basis of the Community legal order and which ithas the duty to protect. Respect for other institutions is meaningful only if it canbe built on a shared understanding of these values and on a mutual commitment toprotect them.Consequently, in situations where the Community’s fundamental values are in thebalance, the Court may be required to reassess, and possibly annul, measuresadopted by the Community institutions, even when those measures reflect thewishes of the Security Council ...’45. The fact that the measures at issue are intended to suppress internationalterrorism should not inhibit the Court from fulfilling its duty to preserve the ruleof law. In doing so, rather than trespassing into the domain of politics, the Court isreaffirming the limits that the law imposes on certain political decisions. This isnever an easy task, and, indeed, it is a great challenge for a court to apply wisdomin matters relating to the threat of terrorism. Yet, the same holds true for thepolitical institutions. Especially in matters of public security, the political process© Van Diepen Van der Kroef Advocaten page 89 of 99

is liable to become overly responsive to immediate popular concerns, leading theauthorities to allay the anxieties of the many at the expense of the rights of a few.This is precisely when courts ought to get involved, in order to ensure that thepolitical necessities of today do not become the legal realities of tomorrow. Theirresponsibility is to guarantee that what may be politically expedient at a particularmoment also complies with the rule of law without which, in the long run, nodemocratic society can truly prosper. (…)’‘49. (…) As to the right to effective judicial review, the Court has held: ‘The EuropeanCommunity is … a community based on the rule of law in which its institutions aresubject to judicial review of the compatibility of their acts with the Treaty andwith the general principles of law which include fundamental rights. (…) ndividualsare therefore entitled to effective judicial protection of the rights they derivefrom the Community legal order, and the right to such protection is one of thegeneral principles of law stemming from the constitutional traditions common tothe Member States (…)’‘52. The right to effective judicial protection holds a prominent place in the (…)fundamental rights. While certain limitations on that right might be permitted ifthere are other compelling interests, it is unacceptable in a democratic society toimpair the very essence of that right. As the European Court of Human Right held inKlass and Others, ‘the rule of law implies, inter alia, that an interference by theexecutive authorities with an individual’s rights should be subject to an effectivecontrol which should normally be assured by the judiciary, at least in the lastresort, judicial control offering the best guarantees of independence, impartialityand a proper procedure.’”‘54. Had there been a genuine and effective mechanism of judicial control by anindependent tribunal at the level of the United Nations, then this might havereleased the Community from the obligation to provide for judicial control ofimplementing measures that apply within the Community legal order. However, nosuch mechanism currently exists. As the Commission and the Council themselveshave stressed in their pleadings, the decision whether or not to remove a personfrom the United Nations sanctions list remains within the full discretion of the© Van Diepen Van der Kroef Advocaten page 90 of 99

Sanctions Committee – a diplomatic organ. In those circumstances, it must be heldthat the right to judicial review by an independent tribunal has not been secured atthe level of the United Nations. As a consequence, the Community institutionscannot dispense with proper judicial review proceedings when implementing theSecurity Council resolutions in question within the Community legal order.’Judgment of the Court of Justice205. The case of Kadi was joined with the case of Al-Barakat in the judgment of the Court ofJustice. It was discussed above that the State of the Netherlands (together with a number ofother countries) intervened in the proceedings. The position of the State of the Netherlandswas addressed in the following legal considerations:‘262. Conversely, the French Republic, the Kingdom of the Netherlands, the UnitedKingdom and the Council approve, in essence, the analysis made in that connection by theCourt of First Instance in the judgments under appeal and endorse the conclusion drawntherefrom that, so far as concerns the internal lawfulness of the contested regulation, thelatter, inasmuch as it puts into effect resolutions adopted by the Security Council pursuantto Chapter VII of the Charter of the United Nations, in principle escapes all review by theCommunity judicature, even concerning observance of fundamental rights, and so for thatreason enjoys immunity from jurisdiction.’‘263. However, unlike the Court of First Instance, those parties take the view that noreview of the internal lawfulness of resolutions of the Security Council may be carried outby the Community judicature. They therefore complain that the Court of First Instancedecided that such review was possible in the light of jus cogens.’‘265. Further, the French Republic, the Kingdom of the Netherlands, the United Kingdomand the Commission consider that the Court of First Instance erred in law when it ruledthat the fundamental rights at issue in these cases fell within the scope of jus cogens.’‘268. For their part, the French Republic and the Kingdom of the Netherlands suggestthat the Court should undertake a replacement of grounds, claiming that Mr Kadi’s and AlBarakaat’s pleas in law relating to jus cogens should be dismissed by reason of the absolute© Van Diepen Van der Kroef Advocaten page 91 of 99

lack of jurisdiction of the Community judicature to carry out any review of resolutions ofthe Security Council, even in the light of jus cogens.’‘281. In this connection it is to be borne in mind that the Community is based on the ruleof law, inasmuch as neither its Member States nor its institutions can avoid review of theconformity of their acts with the basic constitutional charter, the EC Treaty, whichestablished a complete system of legal remedies and procedures designed to enable theCourt of Justice to review the legality of acts of the institutions.’‘282. It is also to be recalled that an international agreement cannot affect theallocation of powers fixed by the Treaties or, consequently, the autonomy of theCommunity legal system, observance of which is ensured by the Court by virtue of theexclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has,moreover, already held to form part of the very foundations of the Community (…).’‘283. In addition, according to settled case-law, fundamental rights form an integral partof the general principles of law whose observance the Court ensures. For that purpose, theCourt draws inspiration from the constitutional traditions common to the Member Statesand from the guidelines supplied by international instruments for the protection of humanrights on which the Member States have collaborated or to which they are signatories. Inthat regard, the ECHR has special significance (…).’‘284. It is also clear from the case-law that respect for human rights is a condition of thelawfulness of Community acts (…) and that measures incompatible with respect for humanrights are not acceptable in the Community (…).’‘285. It follows from all those considerations that the obligations imposed by aninternational agreement cannot have the effect of prejudicing the constitutional principlesof the EC Treaty, which include the principle that all Community acts must respectfundamental rights, that respect constituting a condition of their lawfulness which it is forthe Court to review in the framework of the complete system of legal remedies establishedby the Treaty.’‘290. It must therefore be considered whether, as the Court of First Instance held, as aresult of the principles governing the relationship between the international legal order© Van Diepen Van der Kroef Advocaten page 92 of 99

under the United Nations and the Community legal order, any judicial review of theinternal lawfulness of the contested regulation in the light of fundamental freedoms is inprinciple excluded, notwithstanding the fact that, as is clear from the decisions referred toin paragraphs 281 to 284 above, such review is a constitutional guarantee forming part ofthe very foundations of the Community.’‘299. It follows from all those considerations that it is not a consequence of theprinciples governing the international legal order under the United Nations that anyjudicial review of the internal lawfulness of the contested regulation in the light offundamental freedoms is excluded by virtue of the fact that that measure is intended togive effect to a resolution of the Security Council adopted under Chapter VII of the Charterof the United Nations.’‘300. What is more, such immunity from jurisdiction for a Community measure like thecontested regulation, as a corollary of the principle of the primacy at the level ofinternational law of obligations under the Charter of the United Nations, especially thoserelating to the implementation of resolutions of the Security Council adopted underChapter VII of the Charter, cannot find a basis in the EC Treaty.’‘303. Those provisions (intended are: Articles 297 and 307 EU, addition of counsel)cannot, however, be understood to authorise any derogation from the principles of liberty,democracy and respect for human rights and fundamental freedoms enshrined in Article6(1) EU as a foundation of the Union.’‘304. Article 307 EC may in no circumstances permit any challenge to the principles thatform part of the very foundations of the Community legal order, one of which is theprotection of fundamental rights, including the review by the Community judicature of thelawfulness of Community measures as regards their consistency with those fundamentalrights.’‘305. Nor can an immunity from jurisdiction for the contested regulation with regard tothe review of its compatibility with fundamental rights, arising from the alleged absoluteprimacy of the resolutions of the Security Council to which that measure is designed to giveeffect, find any basis in the place that obligations under the Charter of the United Nations© Van Diepen Van der Kroef Advocaten page 93 of 99

would occupy in the hierarchy of norms within the Community legal order if thoseobligations were to be classified in that hierarchy.’‘321. In any event, the existence, within that United Nations system, of the reexaminationprocedure before the Sanctions Committee, even having regard to theamendments recently made to it, cannot give rise to generalised immunity fromjurisdiction within the internal legal order of the Community.’‘322. Indeed, such immunity, constituting a significant derogation from the scheme ofjudicial protection of fundamental rights laid down by the EC Treaty, appears unjustified,for clearly that re-examination procedure does not offer the guarantees of judicialprotection.’‘326. It follows from the foregoing that the Community judicature must, in accordancewith the powers conferred on it by the EC Treaty, ensure the review, in principle the fullreview, of the lawfulness of all Community acts in the light of the fundamental rightsforming an integral part of the general principles of Community law, including review ofCommunity measures which, like the contested regulation, are designed to give effect tothe resolutions adopted by the Security Council under Chapter VII of the Charter of theUnited Nations.’‘327. The Court of First Instance erred in law, therefore, when it held, in paragraphs 212to 231 of Kadi and 263 to 282 of Yusuf and Al Barakaat, that it followed from the principlesgoverning the relationship between the international legal order under the United Nationsand the Community legal order that the contested regulation, since it is designed to giveeffect to a resolution adopted by the Security Council under Chapter VII of the Charter ofthe United Nations affording no latitude in that respect, must enjoy immunity fromjurisdiction so far as concerns its internal lawfulness save with regard to its compatibilitywith the norms of jus cogens.’‘335. According to settled case-law, the principle of effective judicial protection is ageneral principle of Community law stemming from the constitutional traditions common tothe Member States, which has been enshrined in Articles 6 and 13 of the ECHR, thisprinciple having furthermore been reaffirmed by Article 47 of the Charter of fundamentalrights of the European Union, proclaimed on 7 December 2000 in Nice. (…)’© Van Diepen Van der Kroef Advocaten page 94 of 99

206. That case concerned European Community measures. The case shows that the EuropeanCourt of Justice in order to protect European citizens considers a review of the fundamentalrights of the European Community legal order to be necessary also in cases of resolutionsderiving from the Charter of the United Nations. In addition, the Court of Justice held thatan effective legal protection is a fundamental right within the European Community legalorder, and which may not be violated. The District Court has erroneously ignored thesefundamental rights of the Association et al. by holding that absolute immunity should attachto the United Nations.Other legal considerations of the District Court207. The District Court stated in the closing two sentences of legal consideration 5.24 that underthe ECHR it is primarily that state within whose territory the wrongful act was committedthat would be liable for not allowing access to a court of law. According to the District Courtthat state is not the Netherlands. The District Court incorrectly failed to provide anygrounds for that assertion and without that the comment is incomprehensible. To the extentthat the District Court meant that another court would have territorial jurisdiction theAssociation et al. would point out that the ECHR does not assign territorial jurisdiction. Thenormal rules apply there, that in the result mean that the District Court, The Hague hasjurisdiction (see paragraphs 289 through 292 of the writ of summons at first instance).208. It follows from the above that the limitations attached to Article 6 ECHR by the DistrictCourt are incorrect. The District Court’s interpretation of Article 6 ECHR errs at law. Therights under Article 6 ECHR remain safeguarded even where the interests of the UnitedNations may possibly be affected. The European Community legal order implies that theseare not ranked as subordinate to the legal order of the United Nations. Matters that ariseunder UN resolutions can also be reviewed against the human rights that are safeguarded bythe ECHR.The Member States, including the Netherlands, must ensure that this European Communitylegal order – including the human rights arising under, inter alia, Article 6 ECHR – issafeguarded. In any event, the line of reasoning that the ECHR would not apply because itpost-dates the founding of the United Nations is insupportable.© Van Diepen Van der Kroef Advocaten page 95 of 99

209. To conclude, the Association et al. points out that in the above case of Al-Barakaat theState of the Netherlands intervened on the side of the European Council. The State of theNetherlands then adopted the same position as in the present proceedings, namely, thatwhatever the United Nations does within the framework of the resolutions of the SecurityCouncil under Chapter VII of the UN Charter falls outside the control of the EuropeanCommunity judicature, even in the case of fundamental rights, and that the United Nationsenjoys immunity from jurisdiction to this extent (see legal consideration 262). That positionis shown, in the light of the judgment cited, to be erroneous.Ground of appeal 15210. The District Court has erroneously considered under legal consideration 5.25 that:‘Reviewing against Article 14 ICCPR does not lead to a different outcome.’Explanation of ground of appeal 15211. It follows from the grounds of appeal set out above and explanations thereto that a reviewof Article 14 ICCPR should have had the result that the District Court has jurisdiction to hearthe claim of the Association et al. against the United Nations.212. The District Court has further failed to understand that – otherwise than in the case of theECHR – virtually every country of the United Nations has acceded to the ICCPR. Thereasoning of the District Court under legal consideration 5.24 that no significance attachesto certain caselaw given the fact that the judgments of the European Court of Human Rightsrelated to a European international organisation with merely a restricted Europeanmembership cannot apply to the ICCPR. Without further grounds, which are absent, it isincomprehensible that the District Court concluded that a review of Article 14 ICCPR wouldnot lead to a different result.After all, virtually every country of the United Nations has through the ICCPR safeguardedthe right of access to the court, a principle that is indeed also expressed in section 29 of theConvention.© Van Diepen Van der Kroef Advocaten page 96 of 99

Ground of appeal 16213. The District Court has erroneously considered under legal consideration 5.26 that:‘The Court’s enquiry into a possible conflict between the absolute immunity of the UN thatis valid in international law and other norms of international law does not lead to anexception to this immunity.’Explanation of ground of appeal 16214. Given the grounds of appeal set out above and explanations thereto it should be concludedthat legal consideration 5.26 is erroneous. For the sake of brevity the Association et al.refers to the grounds of appeal set out above with explanations.Ground of appeal 17215. The District Court has erroneously considered under legal consideration 5.27 that:‘On the basis of the above, the State’s interim motion to have the Court declare it has nojurisdiction in the case of the Association et al. against the UN should be allowed.’The District Court has also erroneously considered under legal consideration 5.28 that:‘In view of this outcome the State’s second interim motion to intervene as a third party or,alternatively, to join the defendant in the action of the Association et al. against the UNdoes not need to be considered.’216. The District Court has further erroneously considered under legal consideration 5.29 that:‘The Association et al. should be ordered to pay the costs of this incident as the partyagainst whom the judgment is given.’© Van Diepen Van der Kroef Advocaten page 97 of 99

Explanation of ground of appeal 17217. Given the grounds of appeal set out above and explanations thereto the District Courtshould have dismissed the interim motion to have the Court declare that it had nojurisdiction in the case of the Association et al. against the UN. That entails that the DistrictCourt should have considered the motions of the State of the Netherlands to intervene,alternatively, to join in the action. That consideration should still be effected. TheAssociation et al. persists in its defence against those interim motions and refers to what ithas put forward in its statement of defence in the incident and pleadings at first instance.The interim motions of the State of the Netherlands to intervene, alternatively, to join haveto be dismissed, too.Ground of appeal 18218. The decision of the District Court under legal consideration 6 is incorrect.Explanation of ground of appeal 18219. Given the grounds of appeal set out above and explanations thereto the District Courtshould have dismissed the interim motions of the State of the Netherlands and hold that ithad jurisdiction to hear the claims of the Association et al. against the United Nations. Itfollows also from the above that the District Court incorrectly ordered the Association et al.to pay costs and that the District Court erroneously failed to decide on the motion onintervention, alternatively, joinder.220. To the above should once again be added that the United Nations did not appear in its ownbehalf.Only the State of the Netherlands asserted that it had sufficient interest in pleading theimmunity of the United Nations on the ground of the international obligation that the Stateof the Netherlands had in that respect. It was shown above that there are numerous other,more weighty obligations under international and human rights law on the State of theNetherlands that were disregarded with the invocation of immunity. It should be consideredthat what is at issue here is not a coincidental disregard of the obligations under© Van Diepen Van der Kroef Advocaten page 98 of 99

international and human rights law, including also the obligation of the State of theNetherlands within the framework of its membership of the European Union. The actionbrought by the State of the Netherlands must be traced back to its actual interest. After all,if immunity is accorded and the Netherlands Court declares itself as without jurisdiction theState of the Netherlands can restrict its defence and keep referring to the United Nations.In conclusion:If it pleases the Court to give judgment having immediate effect:1. to set aside the judgment against which appeal was lodged;2. still to determine that the District Court The Hague has jurisdiction to hear the claims thatthe Association et al. instituted by service of writ of summons of 4 June 2007 against theUnited Nations;3. to direct the State of the Netherlands to reimburse the appellants for all that the Associationet al. might have paid to the State of the Netherlands in implementation of the contestedjudgment plus the statutory interest from the day of payment to the day of repayment;4. to condemn the State of the Netherlands in the costs of both courts plus subsequent costs tobe determined by the Court of Appeal all to be satisfied within fourteen days of official datingof the judgment and – should satisfaction of the (subsequent) costs not be effected within thestated period - plus the statutory interest on such subsequent costs from the stated period forsatisfaction.M.R. GerritsenDr. A. HagedornJ. StaabS.A. van der Sluijs© Van Diepen Van der Kroef Advocaten page 99 of 99