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only in Germany. It was not disputed that in any event the German court in such a casewould offer access to justice.64. Apart from that, it is also the case that in the course of time limitations have been placedon the immunity of states. Those limitations support the viewpoint of the Association et al.that in this case no immunity should be accorded. A leading case in which the immunity ofstates is restricted is the judgment of the Hoge Raad of 25 November 1994 (NJ 1995, 650;Marokko/De Trappenberg). The State of the Netherlands dealt extensively with this case inthe motions at first instance under numbers 3.2.9 and 3.2.10. The Association et al. refutedthose propositions under points 27 through 31 of its statement of defence in the incidentsand refers here to those assertions. The Association et al. repeats the conclusion drawntherefrom that the Hoge Raad in that case held that exceptions to state immunity werepossible and that in that case there was an issue of such an exception.Functional versus absolute immunity65. The Association et al. will deal further with the fact that the immunity of the UN is limitedto the functional necessity for it, known as functional immunity.The District Court virtually ignored a number of aspects thereof that are decisive for thiscase. The Association et al. will in succession deal with the legal rules that apply, thepractice of international law and the interpretation thereof in the light of the ViennaConvention on Treaties. The decision in Manderlier/UN (Tribunal Brussels, Manderlier/UN,11 May 1966, 45 International Law Reports 446) should have been of seminal influence. Thatdecision was extensively dealt with at first instance by the Association et al. It is certainlyremarkable that the District Court failed to address it at all. The Manderlier/UN Case is todate the only case on the immunity of the UN.The meagre caselaw that the District Court did advance as grounds for its decision did notconcern the UN. Perhaps the reason for that omission lies in the fact that nor did the Stateof the Netherlands deal with Manderlier/UN. The District Court, in the view of theAssociation et al., too sympathetically followed the interest pleaded by the State of theNetherlands.66. The case of Manderlier against the UN had similarities with as well as differences from thepresent proceedings. The Association et al. will now address these matters.© Van Diepen Van der Kroef Advocaten page 28 of 99
67. In the Manderlier Case the UN presented no defence on the merits but rather invokedimmunity under Article 105 of the UN Charter. The Tribunal in Brussels held that thecomplaint against the UN could not be heard due to the immunity of the UN. The Court ofAppeal in Brussels upheld this decision in a judgment of 15 September 1969 (69 ILR 139). Inthe proceedings between Manderlier and the UN Manderlier invoked, inter alia, Article 6 ofthe ECHR and Article 10 UDHR. The Court of Appeal held that the UDHR lacked the force oflegislation (see 45 ILR, page 451). The Tribunal in Brussels held further that only fourteenstates were parties to the convention (see 45 ILR, page 452). Insofar as the numericalargument was valid in 1966 that is certainly not the case now that there are presently 46countries that have acceded to the ECHR.68. The Tribunal in Brussels held in the Manderlier Case that a citizen has in principle a right ofaccess to the court. The Tribunal therefore recognized in that regard also the obligation ofthe UN that arises from Section 29 of the Convention on Privileges and Immunities of 13February 1946 and reached an important conclusion (see 45 ILR, page 451):‘In spite of this provision of the Declaration which the U.N. proclaimed on 10 December1948, the Organization has neglected to set up the courts which it was in fact alreadybound to create by Section 29 of the Convention [on Privileges and Immunities] of 13February 1946.’The UN were under the obligation to provide access to an independent court. The obligationwas not enforced only because it was assumed in 1966 that the UN still had the time tofulfill that obligation. It must be assumed that even the Belgian court, now some 40 yearslater, would no longer accept this failing by the UN.69. It follows from the Manderlier Case in the only decision in the international practice on theimmunity of the UN that a review was conducted of Article 6 ECHR, Article 14 ICCPR andSection 29 of the Convention. Such weighing of interests entails that immunity, contrary towhat the District Court, The Hague has held, is not absolute. Besides that, the decision inthe Manderlier Case demonstrated that international practice certainly proceeds on thebasis of an immunity that is limited in scope. In addition, the decision in the ManderlierCase confirms that the UN are not above the law and that the UN should itself have providedaccess to justice under Section 29 of the Convention. The Association et al. also points outthat the District Court totally ignored this Article in this context. Section 29 proves that the© Van Diepen Van der Kroef Advocaten page 29 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 26 and 27: functional necessity. In that conte
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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