© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
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
- Page 2: Against:1. The State of the Netherl
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- Page 42 and 43: of functional necessity for immunit
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36. Consequently, the District Court erroneously held un<strong>der</strong> legal consi<strong>der</strong>ation 5.6 that:‘The State’s own interest in its interim motion follows particularly from its obligationun<strong>der</strong> international law by virtue of article 105 paragraph 1 of the UN Charter. Un<strong>der</strong> 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 un<strong>der</strong> 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 consi<strong>der</strong>ed un<strong>der</strong> legal consi<strong>der</strong>ation 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 consi<strong>der</strong>ed and held un<strong>der</strong> legal consi<strong>der</strong>ation 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<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 16 of 99
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