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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
- it is established that the UN had to protect the people in the Safe Area in order to preventviolations of human rights- it is established that the UN disarmed the civilians- it is established that the UN offered no resistance to the advancing Serbs- it is established that there was no intervention when aid convoys were stopped- it is established that massive violations of human rights occurred- it is established that the weapons were not returned by Dutchbat when the populationwished to resist the advancing Serbs with the announcement by Dutchbat that it wouldensure protection- it is established that the UN provided no Close Air Support- it is established that the UN co-operated in the deportation of the victims- it is established that genocide was committed.It was not open to the UN under these circumstances to make an (indirect) appeal toimmunity. The UN should instead have waived immunity. Whatever may be the case, giventhe above facts the claim of immunity has to be ignored and the rights of the Association etal. have to prevail. An independent judicial review of the claim of the Association et al.should take place.Criticism of international practice as a norm98. The District Court held under legal consideration 5.13 that absolute immunity of the UnitedNations was the norm in international practice, and that such norm is to be respected.The judgment erroneously ignores the fact that the United Nations has never before beensued on the basis of the fact complex set out in the writ of summons, which includesinvolvement in genocide and also other very serious violations of human rights. Nointernational practice existed in this field prior to 1995 (happily) and no caselaw exists onthis type of exceptional case.99. Besides that, the question should be posed whether international practice should be thenorm in the present case. Practice can be a source of law but may not be misused as anexcuse to legitimate unlawful conduct. It is rather the law that should prevail not thepractice.© Van Diepen Van der Kroef Advocaten page 43 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 40 and 41: 90. The ICJ gave an Advisory Opinio
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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