© Van Diepen Van der Kroef Advocaten

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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
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 and 16: eferred to the fact that the proces
Page 17: No legal relevant interest of the S
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
Page 66 and 67: 151. The Basic Principles provide t
Page 68 and 69:
Convention and the Geneva Conventio
Page 70 and 71:
uling of the European Court of Huma
Page 72 and 73:
torture must be accountable is not
Page 74 and 75:
is in that connection incorrect. Th
Page 76 and 77:
Ground of appeal 14178. The Distric
Page 78 and 79:
human rights treaties, ECHR and ICC
Page 80 and 81:
they rely for their effectiveness o
Page 82 and 83:
Association et al. will below furth
Page 84 and 85:
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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