© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
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
- Page 2: Against:1. The State of the Netherl
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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 un<strong>der</strong> 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 consi<strong>der</strong>ation 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 un<strong>der</strong> legal consi<strong>der</strong>ation 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 consi<strong>der</strong>ations.<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 23 of 99
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