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necessary that change is there effectuated. The UN and the State of the Netherlands assertin the researches financed by them (UN Report and NIOD Report) that lessons have beenlearned from their errors. The Association et al. repeats that what is at issue here are notthe decisions themselves but the implementation thereof. It is unacceptable that the UnitedNations should be the only organisation in the world that is not subject to judicial review forany instance of unlawful conduct, including permitting the commission of genocide. Finally,the Association et al. points out once more that Section 29 of the Convention provides for areview by an independent court. The manifestly so undesirable influencing assumed by theDistrict Court is thus already provided for in the Convention. The Association et al. merelyclaims what is already obligatory under international law.Ground of appeal 9110. The District Court erroneously held under legal consideration 5.15 that:‘Neither does the available, but scant, jurisprudence about the scope of the norm of article105 paragraph 1 of the UN Charter afford grounds for the conclusion that a national court,if and insofar as it has scope for review, can proceed in any other way than with theutmost reticence.In its Advisory Opinion of April 29, 1999 on the immunity of a UN worker the InternationalCourt of Justice rules that possible wrongful acts committed by the UN are not open toassessment by national courts, but should take place in the context of specific disputesettlement as provided for in Article VIII, paragraph 29 of the Convention (DifferenceRelating to Immunity from Legal Process of a Special Rapporteur of the Commission onHuman Rights, Advisory Opinion, I.C.J. 1999, p. 62, paragraph 66). There are no legalgrounds for the assertion that the lack of an adequate provision within the meaning ofArticle VIII, paragraph 29 warrants any infringement of the principal rule of Article 105paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue in this caseand of (2) the question what scope for review the court would have had.’© Van Diepen Van der Kroef Advocaten page 48 of 99
Explanation of ground of appeal 9111. In legal consideration 5.15 the District Court intended to address the available caselaw onthe scope of Article 105 paragraph 1 of the UN Charter. The District Court actually failed toaddress the most important relevant case. In its discussion of the Advisory Opinion of the ICJreferred to several times above the District Court passed over the essence of that judgment.The explanation to this ground of appeal will clarify various points. The Association et al.will also deal with other relevant caselaw and the Report of the Dutch Advisory Commissionon Issues arising under Public International Law (CAVV).112. As was said above, the Association et al. is surprised that the District Court failed to addressthe Manderlier Case cited above. That is the only case that concerns the immunity of theUN. The Manderlier Case is discussed extensively above and entails that the Court now hasjurisdiction to hear an action brought against the United Nations. Moreover, the facts in thepresent case, much more so than in the Manderlier Case, provide cause to assume thatjurisdiction.113. The District Court concluded under legal consideration 5.15 that on the basis of the AdvisoryOpinion of the ICJ it should proceed with the utmost reticence. That is an erroneousconclusion to be drawn from the Advisory Opinion.Even if that conclusion were to be correct, it still holds that a review done with the utmostreticence is something entirely different from no review. The District Court thus erroneouslyfailed to conduct any review and assumed absolute immunity.114. Legal consideration 66 of the Advisory Opinion cited by the District Court does not addressthe essence of that judgment. In that legal consideration the ICJ referred to Section 29 ofthe Convention. It is not disputed that in the present case no legal remedy within themeaning of Section 29 was available. The ICJ in the Advisory Opinion did not address thequestion what is the law if – as in the present case – a mode of settlement within themeaning of Section 29 of the Convention is absent.© Van Diepen Van der Kroef Advocaten page 49 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 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 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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