© Van Diepen Van der Kroef Advocaten

115. It is also incomprehensible that the District Court failed to address the propositions of theAssociation et al. regarding the Advisory Opinion. Thus the District Court failed to addressthe judgment of the ICJ that the immunity of the UN can yield. The scope of immunity isexpressed more clearly under number 61 of the Advisory Opinion:‘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 confirms that a weighing of interests should be conducted and that the national court –contrary to what the District Court has held – does clearly have jurisdiction to conduct areview. As the ICJ in the case against Malaysia has already held that in regard to defamationcompelling reasons can exist to depart from the view of the Secretary-General (regardingthe functioning of an official), that shall without more be the case with genocide. It alsoapplies that in the present case the Secretary-General has no power to notify a finding andhas indeed not made any finding.The Association et al. incidentally points out also that it was open to the United Nations,represented by the Secretary-General, to waive immunity (see numbers 81 through 83).The Association et al. refers in that context to what the Secretary-General in reaction to thewrit of summons on 8 June 2007 (through his spokeswoman) declared (to be read on the UNwebsite under the heading ‘Secretary-General fully supports call for justice in Srebrenicamassacres’, see: www.un.org/News/ossg/hilites/hilites_arch_view.asp?HICJID=857):‘Asked about a letter sent by the group Women of Srebrenica, the Spokeswoman said shehad just learned that the United Nations had received legal documents relating to the caseand that the survivors of the Srebrenica massacres are absolutely right to demand justicefor the most heinous crimes committed on European soil since World War II. The Secretary-General joins them in that demand, without reservation, and expresses his deepestsympathies to them and to the relatives of those brutally executed at Srebrenica, almost12 years ago. (…)’The difference between word and deed is certainly remarkable.© Van Diepen Van der Kroef Advocaten page 50 of 99