© Van Diepen Van der Kroef Advocaten

of functional necessity for immunity cited in the literature (see Kooijmans op. cit. pages171-172) are likewise of a fundamentally different order than the present case.95. The interim conclusion that here must be drawn is that the immunity of the United Nationsis not absolute but remains confined to the cases in which a functional necessity forimmunity exists. That functional necessity is not present in this case. The following servesas explanation.No necessity for immunity96. The admissiblity of the action brought against the UN does not entail any influencing orimpeding of the functioning of the UN in carrying out its duties. As was set out extensively inthe writ of summons the UN in its report on Srebrenica judged that it had made numerouserrors itself. What is at issue in these proceedings is the question, what are theconsequences of those errors? It is not the functioning as such of the UN that is at issue,rather the question whether the UN should be protected by the rule on immunity in respectof every type of unlawful conduct. As will be extensively discussed below in the context ofthe weighing of interests, where genocide is allowed to happen there should at the veryleast be an account given and it cannot be that that is prevented by according absoluteimmunity. That applies all the more for an organisation that has set itself – inter alia – thepurpose of preventing genocide and permanently dedicates itself to human rights. Thisorganisation has apparently made it a policy not to appear in legal proceedings in order toclaim immunity.The State of the Netherlands in its interim motion for a declaration of lack of jurisdictionhas attempted to cover up this most spectacular violation of human rights under the cloak ofimmunity. It is unacceptable that the District Court has allowed that claim.97. The Association et al. recalls that the genocide was committed fourteen years ago and theUN claims that lessons have been learned from this drama. In the case of the UN Rapporteurthe Public Prosecutor’s Department posed the question whether the Rapporteur had madeimproper statements in the media. It was acknowledged by the International Court ofJustice even in that far less consequential case that exceptional cases exist where it ispossible not to accord immunity to the UN. In the present case the following facts serve asstarting points:© Van Diepen Van der Kroef Advocaten page 42 of 99