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consideration 3.3.6). Under legal consideration 3.3.2 the Hoge Raad held with reference toan employee of an international organisation proceeding against the employer:‘The question whether, and if so in which cases an appeal to the privilege of immunityfrom jurisdiction by an international organisation must be upheld is principally ofimportance in the light of – and arises in these proceedings exclusively in relation to – thejurisdiction of the court of the host country. Giving an answer to this question requires inprinciple a weighing of two interests, each weighty but conflicting: on one side, theinterest of the international organisation that under all circumstances the independent andunimpeded performance of its tasks is guaranteed; on the other, the interest of the otherparty that its dispute with the international organisation will be heard and resolved by anindependent court.’It was also expressly held in the case cited that the fact that the allegedly culpable conductfell within the functional immunity was not an obstacle to the weighing of interests referredto above (see legal consideration 3.3.5).Even if the District Court were to hold that the allegedly culpable conduct of the UN fellwithin the functional immunity, the right of access to the Court must be weighed againstthat immunity.119. The Association et al. also finds support for its propositions in the caselaw of the DistrictCourt The Hague, 28 November 2001, NJkort 2002, 1. The District Court held that it hadjurisdiction to hear a dispute where an international organisation claimed immunity but noalternative effective legal remedy was available. That case concerned a labour disputebetween an international organisation (ISNAR) and an employee (Baur). Such a dispute falls(naturally) within the functional immunity. The District Court also established that underlegal consideration 5.3. ISNAR had asserted in the proceedings that its staff regulationsprovided an alternative legal remedy. That assertion was dismissed by the District Court(see legal consideration 5.10):‘Baur et al. have argued that the proceedings referred to in Article 16 of the staffregulations do not in this present case constitute an effective judicial process and offerinsufficient protection. Reference was made in particular to the absence of informationon this judicial process or to time periods and to the fact that there has been noimplementation of the “regulations” within ISNAR itself: the ISNAR Appeal© Van Diepen Van der Kroef Advocaten page 52 of 99
Committee does not exist and nor does the Chairperson thereof. ISNAR has not dealtsubstantively with this point but has merely claimed that it is not significant to thequestion whether immunity is accorded to ISNAR. The District Court has another viewon this. Indeed, every person has a right – also under international law – to aneffective judicial process in cases such the present. Should it emerge therefore that thejudicial process under the staff regulations is not in this specific case effective, then aduty arises upon the Netherlands court.’120. It could be deduced from the opening of legal consideration 5.15 that the District Court wasdiscussing only the caselaw on the norm of Article 105 paragraph 1 of the UN Charter. Itemerges from the remaining of legal consideration 5.15 that actually the District Court wasdealing more broadly with the norm of Article 105 and also addressed the question whatwould be the legal basis for an encroachment on Article 105 paragraph 1 of the UN Charter.Before dealing with other legal sources than the caselaw the Association et al. repeats thatit holds the view primarily that there is here no issue of any encroachment on Article 105paragraph 1 of the UN Charter, only of an application of it.As was said above, the immunity extends no further than the functional necessity for it andthere is here no issue of any such functional necessity, alternatively that such functionalimmunity should yield in the context of a weighing of interests.Advisory Commission on Issues arising under International Law (CAVV)121. The Association et al. again recalled in the writ of summons (under point 452) that theAdvisory Commission on Issues arising under Public International Law (CAVV) set up by theState of the Netherlands has held that in the absence of any other legal remedy, the right ofaccess to the court is more important than the claim to immunity. The CAVV is the mostimportant advisory body to the State of the Netherlands on issues arising in the field ofinternational law. The CAVV wrote in Article 4.5.2 of its Report no. 13 that the nationalcourt:‘(…) should proceed to a prima facie investigation in the light of international legal normsof the availibility of adequate internal legal remedies that are available within aninternational organisation to the aggrieved party. In the event of a negative result it is© Van Diepen Van der Kroef Advocaten page 53 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 50 and 51: 115. It is also incomprehensible th
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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