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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
Page 6 and 7: - the motion by the State of the Ne
Page 8: options exist side by side and do n
Page 11 and 12: 22. The Public Prosecutions Departm
Page 13 and 14: Explanation of ground of appeal 427
Page 15: eferred to the fact that the proces
Page 19 and 20: The Article envisages a situation i
Page 21 and 22: The Hague District Public Prosecuto
Page 23: 54. The District Court is evidently
Page 26 and 27: functional necessity. In that conte
Page 28 and 29: only in Germany. It was not dispute
Page 30 and 31: immunity of the UN has no absolute
Page 32 and 33: ‘Darüber hinaus kann gefragt wer
Page 34 and 35: the purpose would become subservien
Page 36 and 37: exercise of their functions in conn
Page 38 and 39: ) leads to a result which is manife
Page 40 and 41: 90. The ICJ gave an Advisory Opinio
Page 42 and 43: of functional necessity for immunit
Page 44 and 45: 100. Even where the District Court
Page 46 and 47: 105. The District Court referred un
Page 48 and 49: necessary that change is there effe
Page 50 and 51: 115. It is also incomprehensible th
Page 52 and 53: consideration 3.3.6). Under legal c
Page 54 and 55: desirable that national courts do n
Page 56 and 57: evidence of the necessity of conduc
Page 58 and 59: The whole point of the Genocide Con
Page 60 and 61: prevent the genocide. Worse still,
Page 62 and 63: 137. It was known at the UN - and b
Page 64 and 65: 144. It is established as a result
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151. The Basic Principles provide t
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Convention and the Geneva Conventio
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uling of the European Court of Huma
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torture must be accountable is not
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is in that connection incorrect. Th
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Ground of appeal 14178. The Distric
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human rights treaties, ECHR and ICC
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they rely for their effectiveness o
Page 82 and 83:
Association et al. will below furth
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And also:‘Reaffirming their profo
Page 86 and 87:
eason enjoys immunity from jurisdic
Page 88 and 89:
the maintenance of international pe
Page 90 and 91:
is liable to become overly responsi
Page 92 and 93:
lack of jurisdiction of the Communi
Page 94 and 95:
would occupy in the hierarchy of no
Page 96 and 97:
209. To conclude, the Association e
Page 98 and 99:
Explanation of ground of appeal 172
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