© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
90. The ICJ gave an Advisory Opinion in 1999 (ICJ 29 April 1999, Difference Relating to Immunityfrom Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J.Reports 1999, p. 62 et seq., hereafter: ‘the Advisory Opinion’). This concerned the immunityof international organisations in general and the UN in particular. The State of theNetherlands also referred to the Advisory Opinion under point 3.2.7 of its motion in interimproceedings at first instance. The State of the Netherlands asserted on the basis of thisAdvisory Opinion of the ICJ that where proceedings are brought against the UN, the countrywhere the proceedings are brought is obliged to inform the Court of the position of theSecretary-General of the UN regarding the question of its immunity. The Court would thenbe obliged to follow the view of the Secretary-General of the UN unless there werecompelling reasons not to acknowledge that immunity. Such a compelling reason would onlyexist, according to the State of the Netherlands, where the UN expressly waived itsimmunity.91. The Advisory Opinion of the ICJ in the matter referred to above first of all related to anessentially different fact-complex. It concerned a dispute against the Special Rapporteur forthe UN Commission for Human Rights regarding the independence of the courts andattorneys in Malaysia. It did not, therefore, involve proceedings brought against the UNitself and the gravity of the case was of an entirely different order from genocide. After thisUN Rapporteur had expressed negative comments in a newspaper interview on the subjectof his enquiry he was beset with legal proceedings claiming compensation. This wasmanifestly an attempt to influence the judgment of the UN Rapporteur by putting him underpressure with legal proceedings during the enquiry. Section 22 of the Convention providesthe possibility for the Secretary-General to give a finding on the question whether an officialof the UN has acted within the performance of his or her duties, in which case functionalimmunity would attach. The Secretary-General of the UN concluded that the UN Rapporteurremained within the scope of his task when expressing his opinions so that functionalimmunity attached.According to the ICJ Malaysia should have brought the issue of immunity to the attention ofthe court at the commencement of the legal proceedings.92. The power of the Secretary-General to give a finding relates to the question whether therewas an exercise of function during a mission and not to the question whether immunityought to be accorded (see number 60 of the Advisory Opinion). The scope of immunity isclearly set out under number 61 of the Advisory Opinion:© Van Diepen Van der Kroef Advocaten page 40 of 99
‘When national courts are seised of a case in which the immunity of a United Nations agentis in issue, they should immediately be notified of any finding by the Secretary-Generalconcerning that immunity. That finding, and its documentary expression, creates apresumption which can only be set aside for the most compelling reasons and is thus to begiven the greatest weight by national courts.’This consideration relates to ‘experts’ in respect of whom the Convention lays down underArticle 23 that the Secretary-General may only waive immunity where in his opinionimmunity would impede the course of justice. Accordingly, there is in such cases alegislative basis for a finding of the Secretary-General, which, moreover, can be departedfrom. The ICJ did not hold that only the waiver of immunity by the UN was such acompelling reason that it constituted a ground for departing from the basic assumption ofimmunity. There is thus, according to the ICJ, certainly a possibility to depart fromimmunity, namely, ‘for the most compelling reasons’. That determination entails that thejudgment of the District Court that the immunity of the United Nations must be absolute iserroneous. There can be no doubt that involvement in genocide constitutes the ‘mostcompelling reason’. Indeed, no greater violation of human rights exists. Again for this reasonno immunity applies in this case.93. The Association et al. points out further that the ICJ in the Advisory Opinion dealt expresslywith the question whether in that specific case the expression of opinion by the UNRapporteur was done in the function of and within the scope of the mission entrusted tohim, in which case immunity could be accorded (see number 47 et seq. of the AdvisoryOpinion). The Advisory Opinion is a confirmation by the ICJ that in respect of internationalorganisations in general, and the UN in particular, there is an issue of functional (and notabsolute) immunity.94. Given the facts set out in the originating writ of summons (under numbers 6 through 287)the present case is of an entirely different order than the case discussed by the ICJ in itsAdvisory Opinion. Thus there is no issue of influencing the UN, against which the functionalimmunity of the UN correctly offers protection. The mission to protect the civilianpopulation that was in the Srebrenica Safe Area ended already some fourteen years ago.Furthermore, it is impossible to compare (joint) responsibility for genocide with a claim forcompensation for possibly defamatory opinions expressed by a UN Rapporteur. The examples© Van Diepen Van der Kroef Advocaten page 41 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 38 and 39: ) leads to a result which is manife
- 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
‘When national courts are seised of a case in which the immunity of a United Nations agentis in issue, they should immediately be notified of any finding by the Secretary-Generalconcerning that immunity. That finding, and its documentary expression, creates apresumption which can only be set aside for the most compelling reasons and is thus to begiven the greatest weight by national courts.’This consi<strong>der</strong>ation relates to ‘experts’ in respect of whom the Convention lays down un<strong>der</strong>Article 23 that the Secretary-General may only waive immunity where in his opinionimmunity would impede the course of justice. Accordingly, there is in such cases alegislative basis for a finding of the Secretary-General, which, moreover, can be departedfrom. The ICJ did not hold that only the waiver of immunity by the UN was such acompelling reason that it constituted a ground for departing from the basic assumption ofimmunity. There is thus, according to the ICJ, certainly a possibility to depart fromimmunity, namely, ‘for the most compelling reasons’. That determination entails that thejudgment of the District Court that the immunity of the United Nations must be absolute iserroneous. There can be no doubt that involvement in genocide constitutes the ‘mostcompelling reason’. Indeed, no greater violation of human rights exists. Again for this reasonno immunity applies in this case.93. The Association et al. points out further that the ICJ in the Advisory Opinion dealt expresslywith the question whether in that specific case the expression of opinion by the UNRapporteur was done in the function of and within the scope of the mission entrusted tohim, in which case immunity could be accorded (see number 47 et seq. of the AdvisoryOpinion). The Advisory Opinion is a confirmation by the ICJ that in respect of internationalorganisations in general, and the UN in particular, there is an issue of functional (and notabsolute) immunity.94. Given the facts set out in the originating writ of summons (un<strong>der</strong> numbers 6 through 287)the present case is of an entirely different or<strong>der</strong> than the case discussed by the ICJ in itsAdvisory Opinion. Thus there is no issue of influencing the UN, against which the functionalimmunity of the UN correctly offers protection. The mission to protect the civilianpopulation that was in the Srebrenica Safe Area ended already some fourteen years ago.Furthermore, it is impossible to compare (joint) responsibility for genocide with a claim forcompensation for possibly defamatory opinions expressed by a UN Rapporteur. The examples<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 41 of 99
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