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immunity of the UN has no absolute character.70. The case of Manderlier against the UN is in another respect of an entirely different order tothe present proceedings. First, the Manderlier Case did not involve genocide, but ratherconcerned the destruction of property. Secondly, the judgment in the Manderlier Case wasgiven at a time when the UN was not yet involved on a large scale in international conflicts,as is now the case. It was unimaginable at that time that genocide could be committedunder the eyes of UN troops.71. The functional (and accordingly limited) character of the immunity of internationalorganisations is confirmed in the caselaw of the Court of Justice of the EuropeanCommunities (HvJ EG 13 July 1990 (Zwartveld), under legal consideration 19):‘Viewed in the light of these principles, the privileges and immunities accorded to theEuropean Communities by the protocol possess only an operational nature, to theextent that they are intended to prevent the Communities from being obstructed intheir operations and independence (…).’72. The UN has itself recognized the problematic of an alternative legal remedy. That is thereason why Section 29 of the Convention provides:‘The United Nations shall make provisions for appropriate modes of settlement of:(a) disputes arising out of contracts or other disputes of a private law character to whichthe United Nations is a party;’Despite the fact that this provision originated in 1946, the UN presently – more than sixtyyears later – have still not established any such legal remedy.73. The literature cited by the Association et al. at first instance remained undiscussed by theDistrict Court. That is incomprehensible given the fact that the District Court based itsgrounds (legal consideration 5.13) on the law in force and on international law practice. A.Reinisch also confirms that Belgium, as a party to the ECHR, should have offered Manderlieraccess to the Tribunal through the national court system and should not have upheld the© Van Diepen Van der Kroef Advocaten page 30 of 99
claim to immunity (A. Reinisch, International Organizations before National Courts, 2000,page 289). K. Wellens has expressed the same opinion (see: ‘Fragmentation of internationallaw and establishing an accountability regime for international organizations: The role ofthe judiciary in closing the gap’, in Michigan Journal of International Law, 11 May 2004).Wellens states, with reference also to Ch. Dominicé, that the right of access to the courtshould weigh more heavily than the interest of immunity (K. Wellens, op. cit., page 18):‘(…) access should prevail over immunity if no legal remedy is available.’74. The Advisory Commission on Issues arising under Public International Law (CAVV), theprincipal advisor of the Netherlands Government on issues of international law, shares theabove view that, in the absence of any other legal remedy, the right of access to the courtis more important than the claim to immunity. Thus, the CAVV writes in Article 4.5.2 of itsReport that the national court:‘(…) should proceed to a prima facie investigation in the light of international legal normsof the availibility of adequate internal legal remedies that are available within aninternational organisation to the aggrieved party. In the event of a negative result it isdesirable that national courts do not accord immunity and proceed to settlement of thedispute at hand.’75. It is meanwhile accepted that the immunity of international organisations, such as the UN, isno longer self-evident (see A. Reinisch, in R. Hofmann et al., Die Rechtskontrolle vonOrganen der stateengemeinschaft, 2007, page 43). There are thus increasing numbers ofnational courts that, in order to guarantee an effective protection of legal rights, do notrecognise the immunity of these organisations. Finally, the Association et al. refers in thecontext of legal practice and current law to the publication of Professor J.A. Frowein(Director Emeritus of the Max Planck Institute for Public International Law in Heidelberg andco-commentator of The Charter of the UN, B. Simma, a commentary, the leading work inthe legal field on the United Nations). In the Article “UN-Verwaltung gegenüber demIndividuum – legibus absolutus in: Allgemeines Verwaltungsrecht – Zur Tragfähigkeit einesKonzepts”, 2008, p. 333 – 347, lodged by the Association et al. at first instance as annex tothe Memorandum of Oral Pleadings, Professor Frowein reasoned as follows:© Van Diepen Van der Kroef Advocaten page 31 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 28 and 29: only in Germany. It was not dispute
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
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Page 70 and 71: uling of the European Court of Huma
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Page 74 and 75: is in that connection incorrect. Th
Page 76 and 77: Ground of appeal 14178. The Distric
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they rely for their effectiveness o
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Association et al. will below furth
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And also:‘Reaffirming their profo
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eason enjoys immunity from jurisdic
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the maintenance of international pe
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is liable to become overly responsi
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lack of jurisdiction of the Communi
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would occupy in the hierarchy of no
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209. To conclude, the Association e
Page 98 and 99:
Explanation of ground of appeal 172
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