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desirable that national courts do not accord immunity and proceed to settlement of thedispute at hand.’122. In the meantime, it is accepted in the most recent literature that the immunity ofinternational organisations, such as the UN, is no (longer) self-evident. The District Courtalso erroneously ignored this literature. The Association et al. refers to A. Reinisch, in R.Hofmann e.a., Die Rechtskontrolle von Organen der stateengemeinschaft, 2007, page 43).123. It is confirmed also in other literature that the Netherlands Court should check whetherupon establishing the functional immunity there would exist an alternative and effectivelegal remedy available to the litigant. If that is not the case, no immunity should beaccorded to the international organisation (see Kooijmans, op. cit., page 175). K. Wellenshas expressed the same view in publication, ‘Fragmentation of international law andestablishing an accountability regime for international organizations: The role of thejudiciary in closing the gap’ (see Michigan Journal of International Law, 11 May 2004).Wellens states, with reference also to Ch. Dominicé, that the right of access to the courtshould weigh more heavily than the interest of immunity (K. Wellens, op. cit., page 18):‘(…) access should prevail over immunity if no legal remedy is available.’Finally, the Association et al. refers to Van der Plas, op. cit., page 265:‘More to the point it follows from the caselaw of the ECHR that the right of access impedesany according of immunity where the plaintiff would otherwise have no effective legalremedy. The curtailment of Article 6 paragraph 1 ECHR would be disproportionate in such acase, alternatively would impugn the essence of the right of the plaintiff.’Ground of appeal 10124. The District Court erroneously considered under legal consideration 5.16 that:‘Now that the interpretation Article 105 of the UN Charter does not offer grounds forrestricting the immunity, the question arises whether other international-law norms –outside the UN frame of reference – prompt a different opinion. This enquiry into© Van Diepen Van der Kroef Advocaten page 54 of 99
conflicting norms is necessary because there are insufficient grounds for accepting a fulland unconditional priority of international-law obligations of the State under the UNCharter over other international-law obligations of the State. The rule of Article 103 of theUN Charter invoked by the State does not always and without more bring relief in the eventof conflicting obligations of a peremptory character (ius cogens) or conflicting human rightsobligations of an international customary law nature.’Explanation of ground of appeal 10125. The opening sentence of legal consideration 5.16 is a summary of earlier legalconsiderations against which the Association et al. has directed separate grounds of appeal.The incorrectness of earlier legal considerations is also the incorrectness of the openingsentence of legal consideration 5.16. Beside that the following applies.It appears from the above grounds of appeal and the explanation thereto that the DistrictCourt has erroneously left essential provisions of the UN Charter, the Vienna Convention onTreaties, caselaw and literature out of consideration in its judgment. The District Courtshould have reviewed already in the framework of the interpretation of Article 105paragraph 1 of the UN Charter whether that interpretation did justice to, for example,Article 6 ECHR. It is after all not imaginable that the UN Charter would have to beinterpreted as being in conflict with that Article.Indeed, Article 105 paragraph 1 of the UN Charter expressly refers to the purposes of theUnited Nations, which Article specifies the protection of human rights as a purpose of theUnited Nations. Article 105 paragraph 1 of the UN Charter is merely a means forimplementation of those purposes. Only where immunity would constitute a purpose in itself– a notion that is not supported by either the text of the import of Article 1 of the UNCharter – should there be room to weigh immunity against the norms of Article 6 ECHR.126. The District Court correctly observed that it was not self-evident that the UN Charter haspriority over other treaty obligations or human rights. The Association et al. notes in thatcontext that it manifests a much too restrictive interpretation of one’s task that the Stateof the Netherlands (and with it: its body the Public Prosecutor’s Department) showed no© Van Diepen Van der Kroef Advocaten page 55 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 52 and 53: consideration 3.3.6). Under legal c
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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