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functional necessity. In that context the Association et al. will examine the judgment in theManderlier case. The Association et al. will also raise the issue that with reference to theliterature and the Report of the Advisory Commission on Issues arising under PublicInternational Law (CAVV) that given the functional character of the immunity of the UN theright of access to the court weighs more heavily than immunity. The basis for the immunityof the UN is Article 105 paragraph 1 of the UN Charter. That Article confines immunity towhat is necessary for the fulfilment of purposes. Immunity is thus functionally determinedand is not itself an objective. Given the Convention on Privileges and Immunities of 13February 1946, which derives from the UN Charter, the UN – to the extent that it isestablished that there exists a functional necessity for immunity – should have waived itsimmunity. The Association et al. will address further in the context of this ground of appealthat the Convention prescribes access to the court in order to be able to bring proceedingsagainst the UN (Section 29). The existence of that section demonstrates that an absoluteimmunity was never intended by the Member States and was never created. Furthermore,the substance and import of the Vienna Convention on Treaties is entirely different to thatwhich the District Court has ascribed to it. In the context of discussing that treaty theAssociation et al. will cite foreign literature on the incorrectness and injustice of anabsolute immunity. Subsequently in this ground of appeal attention will be paid to thelearned opinion of the International Court Justice (ICJ), which opinion expressly opens thepossibility not to accord immunity on the ground of ‘the most compelling reasons’. TheAssociation et al. will demonstrate that such compelling reasons exist pre-eminently in thiscase. Finally, the Association et al. will examine the fact that the District Court indicatedthat it took international practice in part as the criterion for its decision. The District Courtactually failed to understand that the practice is entirely different to its understanding ofit, even if such practice actually were to exist. Here the question can be raised whether‘the practice’ does justice to this case.61. The District Court erroneously, at least insufficiently, reviewed whether the necessity for afunctional immunity for the UN existed in this exceptional case. If and insofar as such areview was conducted the District Court erred at law regarding the functional immunity ofthe UN.© Van Diepen Van der Kroef Advocaten page 26 of 99
State immunity versus immunity of international organisations62. For a proper understanding of the immunity of the UN the Association et al. will brieflyrepeat its viewpoint thereon. A discussion arose during the motions at first instance on theimmunity of states and international organisations. That difference of opinion wasimportant as the State of the Netherlands supported its motions by appeal to literature andcaselaw that was exclusively concerned with the immunity of states. The District Court alsorecognized (more or less) that the immunity of states differed from that of internationalorganisations. The District Court proceeded in its considerations from a fundamentalmisunderstanding by holding that the one immunity did not go further than the other.Contrary to the situation with international organisations when a state is sued there isalways a court that has jurisdiction, namely, the court of the state that is being sued (seeC.G. van der Plas, De taak van de rechter en het IPR, Serie Onderneming en Recht, Kluwer2005, page 263 et seq.). For this reason the immunity of states does indeed extend ‘ingeneral terms’ much ‘further’ than that of international organisations. The caselaw on theimmunity of states is therefore of less utility in the present proceedings. The followingserves as explanation.State immunity63. The immunity of states from jurisdiction differs from the immunity of internationalorganisations both as respects scope as basis. The immunity of states is founded on theprinciple of sovereignty, independence and equality of states and derives from the maxim,‘par in parem non habet imperium’; among equals is no-one supreme (see for example:ECHR 21 November 2001, Al-Adsani/The United Kingdom, 35763/97, legal consideration 54;P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht, 9 e druk, 2002, page 67). Inpractical terms this means that the court of one state cannot give a judgment in a casewhere another state is a defendant. However, this principle is no longer accepted as validlaw in the event of serious violations of human rights. The Association et al. refers to thejudgment of the Italian national courts regarding the serious violations of human rightscommitted by German military forces during the Second World War. The German State,supported in this by the Italian State, on 23 December 2008 brought a case on this issuebefore the ICJ. Both of the states involved based themselves in that case on the positionthat the Italian courts lacked jurisdiction and that the German State could be summoned© Van Diepen Van der Kroef Advocaten page 27 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 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 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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