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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
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 and 18: No legal relevant interest of the S
Page 19: The Article envisages a situation i
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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