© Van Diepen Van der Kroef Advocaten

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) leads to a result which is manifestly absurd or unreasonable.’The Association et al. fails to understand why the District Court in its interpretation ofArticle 105 of the UN Charter did not at least address the question whether the result ofthat interpretation did not lead to a result that was unreasonable or absurd. After all, thevictims of a genocide (which occurred under the eyes of the United Nations, when theUnited Nations had promised protection) were denied every possible legal remedy, and thatwhile Section 29 of the Convention, on which the District Court based its decision,guarantees a legal remedy. The words ‘unreasonable’ and ‘absurd’ are even rathereuphemistic for the situation in which the District Court has placed the victims of thisgenocide. That conclusion serves to justify having recourse to supplementary means ofinterpretation, which in this context are of particular importance for the purposes for whichthe UN was instituted, including the protection of human rights, and thus including the rightof access to justice. Also of importance for interpretation are the circumstances underwhich the treaty was concluded. One of the cornerstones of the formation was the universaldesire and necessity to prevent genocide in the future. Article 105 paragraph 1 of the UNCharter should not be interpreted in the way that the District Court has done where itshould have been established that the granting of immunity conflicts with the realisation ofthe purposes and leads to the frustration of fundamental human rights.87. The principle that the shield of immunity of an international organization has anunavoidable obverse, namely, the obligation of the international organisation to ensure itsown independent legal remedy, is also expressed in the foreign literature (see for exampleK. Odendahl, in her Article (on the discussion of the decision of 25 January 2005 of theFrench Cour de Cassation in the case Degboe/African Development Bank) ImmunitätInternationaler Organisationen bei Dienstrechtsstreitigkeiten, IPRax 2007, p. 339 – 342, mostparticularly p. 340 righthand column):‘Seitens der herrschenden Ansicht in Literatur und Rechtsprechung wird daher mittlerweiledie These vertreten, dass internationale Organisationen nicht nur berechtigt, sondern sogarverpflichtet sind, eigene unabhängige Überprüfungsinstanzen zu schaffen, die als Gerichteverbindlich über Dienstrechtsstreitigkeiten entscheiden. Begründet wird die Pflicht damit,dass eine internationale Organisation trotz der Befreiung von der innerstaatlichenGerichtsbarkeit weiterhin an das Recht, insbesondere auch an die rechtsstaatlichen und© Van Diepen Van der Kroef Advocaten page 38 of 99
menschenrechtlichen Verpflichtungen ihrer Mitgliedstaaten, gebunden bleibe. Die Pflicht,einen organisationsinternen Rechtsweg für Streitigkeiten mit Dritten zu schaffen, sei dieKehrseite der Immunität.’(“Legal authors and the courts of law now therefore dominantly take the point of view thatinternational organizations are not only entitled, but even obliged to create their ownindependent review boards which take binding decisions as courts in disputes with staffmembers. It is said, as a reason for this obligation that, in spite of its immunity fromnational jurisdiction, an international organization remains bound by the law, especially alsothe rule of law and the human rights obligations of its member states. The duty to create alegal process with resort to a court within the organization for disputes with a third party issaid to be the downside of immunity.” translation by lawyers)It follows from this also that the immunity of the United Nations should exist only insofar asan own legal remedy is offered. Where that is absent the national court should deem itselfto have jurisdiction.88. The judgment of the District Court violates Articles 31 and 32 of the Vienna Convention onTreaties. The Convention prescribes a legal remedy under Section 29, which has not beenimplemented. The application of Section 2 without taking Section 29 into account leads to aclearly absurd and unreasonable result.Advisory Opinion ICJ89. The District Court concluded under legal consideration 5.13 that absolute immunity shouldbe the norm for the United Nations. The incorrectness of that judgment emerges alreadyfrom the above.In addition, the caselaw of the International Court of Justice (hereafter: ‘ICJ’) demonstratespositively that a weighing of interests should be conducted. A weighing of interests isirreconcilable with the absolute character of the immunity of the UN accepted by theDistrict Court. The Advisory Opinion of the ICJ to be discussed below is of importance here.© Van Diepen Van der Kroef Advocaten page 39 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 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 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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