© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © 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
116. The District Court considered further under the last sentence of legal consideration 5.15:‘There are no legal grounds for the assertion that the lack of an adequate provision withinthe meaning of article VIII, paragraph 29 warrants any infringement of the principal rule ofArticle 105 paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue inthis case and of (2) the question what scope for testing the court would have had.’The District Court misunderstood, first, that what was at issue was not an encroachment onArticle 105 paragraph 1 of the UN Charter, but an application of that Article. As wasdiscussed above, Article 105 paragraph 1 provides only a limited immunity and a review isallowed. Secondly, the fact that the UN has provided no access to justice within themeaning of Section 29 provides sufficient legal cause to give access to national court. TheDistrict Court incomprehensibly simply ignores the fact that the United Nations has alreadyfailed to meet its international obligation for 60 years. Articles 31 and 32 of the ViennaConvention on Treaties also deserve to be cited here, articles that provide that there shouldbe an ‘interpretation’ if application of any article leads to a result that is unclear or absurd.As was said above, the District Court evidenced no proper understanding of these Articles.117. The District Court did not address the caselaw regarding the immunity of internationalorganisations cited by the Association et al. That is incomprehensible. After all, the caselawin question certainly justifies the conclusion that under certain circumstances the immunityof an international organisation should yield to the interests of the litigant. The Associationet al. will now address this caselaw.Caselaw on the immunity of international organisations118. The Hoge Raad recognized already in 1985 (HR 20 December 1985, NJ 1986, 438(Spanish/Iran-United States Claims Tribunal) that in the absence of an alternative andeffective legal remedy, the immunity of the international organisation should yield beforethe interests of the litigant. In that case immunity was accorded only because theinternational organisation in question provided an alternative legal remedy (see legal© Van Diepen Van der Kroef Advocaten page 51 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 48 and 49: necessary that change is there effe
- 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
116. The District Court consi<strong>der</strong>ed further un<strong>der</strong> the last sentence of legal consi<strong>der</strong>ation 5.15:‘There are no legal grounds for the assertion that the lack of an adequate provision withinthe meaning of article VIII, paragraph 29 warrants any infringement of the principal rule ofArticle 105 paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue inthis case and of (2) the question what scope for testing the court would have had.’The District Court misun<strong>der</strong>stood, first, that what was at issue was not an encroachment onArticle 105 paragraph 1 of the UN Charter, but an application of that Article. As wasdiscussed above, Article 105 paragraph 1 provides only a limited immunity and a review isallowed. Secondly, the fact that the UN has provided no access to justice within themeaning of Section 29 provides sufficient legal cause to give access to national court. TheDistrict Court incomprehensibly simply ignores the fact that the United Nations has alreadyfailed to meet its international obligation for 60 years. Articles 31 and 32 of the ViennaConvention on Treaties also deserve to be cited here, articles that provide that there shouldbe an ‘interpretation’ if application of any article leads to a result that is unclear or absurd.As was said above, the District Court evidenced no proper un<strong>der</strong>standing of these Articles.117. The District Court did not address the caselaw regarding the immunity of internationalorganisations cited by the Association et al. That is incomprehensible. After all, the caselawin question certainly justifies the conclusion that un<strong>der</strong> certain circumstances the immunityof an international organisation should yield to the interests of the litigant. The Associationet al. will now address this caselaw.Caselaw on the immunity of international organisations118. The Hoge Raad recognized already in 1985 (HR 20 December 1985, NJ 1986, 438(Spanish/Iran-United States Claims Tribunal) that in the absence of an alternative andeffective legal remedy, the immunity of the international organisation should yield beforethe interests of the litigant. In that case immunity was accorded only because theinternational organisation in question provided an alternative legal remedy (see legal<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 51 of 99
Change language