© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
evidence of the necessity of conducting a balancing between different internationalobligations. The State of the Netherlands apparently found it necessary only to plead theimmunity of the UN on the ground of Section 2 of the Convention. The State of theNetherlands was unconcerned by all those other conflicting treaty norms. It cannot beapproved that the State of the Netherlands has focussed on a single alleged internationalobligation. Human rights played no role for the State of the Netherlands. The District Courtshould have corrected that position of the State of the Netherlands.Ground of appeal 11127. The District Court erroneously considered under legal consideration 5.18 that:‘The Genocide Convention comprises as principal rule the penalization of genocide. FromArticle 1 of this Convention it is clear that theContracting Parties, including theNetherlands, undertake to prevent genocide – and therefore not to commit the crimethemselves – as well as to punish it.’The District Court also erroneously considered under legal consideration 5.19 that:‘Neither the text of the Genocide Convention or any other treaty, nor internationalcustomary law or the practice of states offer scope in this respect for the obligations of aNetherlands court to enforce the norms of the Genocide Convention by means of a civilaction. The Contracting Parties are obliged to punish all acts defined by this Convention asgenocide within the boundaries set in Article VI of the Convention. Also, as stated before,the states are bound to prevent genocide and therefore to refrain from committing itthemselves. The states are bound also clearly to set out obligations on the extradition ofsuspects of genocide, but the Convention does not provide for (any obligation pertainingto) the enforcement of the norms of enforcing the prohibition on genocide via a civil lawaction. It should be noted here that the International Court of Justice ruled in 2007 aboutthe substance of obligations of parties to the Genocide Convention and in that contextomitted to discuss any obligation by states to enforce the Convention by means of civil lawactions (ruling of February 26, 2007 on the application of the Convention on the Prevention© Van Diepen Van der Kroef Advocaten page 56 of 99
and Punishment of the Crime of Genocide in the case of Bosnia and Herzegovina v. Serbiaand Montenegro, paragraphs 155-179).’Explanation of ground of appeal 11Obligation to prevent genocide128. The UN considered in Resolution 96 (1) of 11 December 1946 that genocide is a crime underinternational law, contrary to the spirit and the purposes of the United Nations andcondemned by the civilized world.129. Article 1 of the Genocide Convention reads:‘The Contracting Parties confirm that genocide, whether committed in time of peace or intime of war, is a crime under international law which they undertake to prevent and topunish.’The determination by the District Court that the fundamental principle of the GenocideConvention was the penalization of genocide is erroneous given the text of Article 1 of theGenocide Convention. The prevention of genocide is at least as important, if not moreimportant than its punishment. Punishing genocide does not return lost lives to an individualor a group of victims of genocide whereas they do retain their lives if genocide is prevented.The Genocide Convention lists in that connection first the prevention and then thepunishment. The ruling of the ICJ in The Hague of 26 February 2007 (Bosnia-Herzegovina/Serbia and Montenegro) is also of importance here. The Association et al. willdeal further with that ruling below. Before that the Association et al. notes by way ofillustration that also here the ICJ under legal consideration 161 of its ruling refers to anAdvisory Opinion of the ICJ from 1951, in which was again established that:‘The Convention was manifestly adopted for a purely humanitarian and civilizing purpose(….) it is indeed difficult to imagine a convention that might have this dual character to agreater degree, since its object on the one hand is to safeguard the very existence ofcertain human groups and on the other to confirm and endorse the most elementaryprinciples of morality.’© Van Diepen Van der Kroef Advocaten page 57 of 99
- 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 54 and 55: desirable that national courts do n
- 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
evidence of the necessity of conducting a balancing between different internationalobligations. The State of the Netherlands apparently found it necessary only to plead theimmunity of the UN on the ground of Section 2 of the Convention. The State of theNetherlands was unconcerned by all those other conflicting treaty norms. It cannot beapproved that the State of the Netherlands has focussed on a single alleged internationalobligation. Human rights played no role for the State of the Netherlands. The District Courtshould have corrected that position of the State of the Netherlands.Ground of appeal 11127. The District Court erroneously consi<strong>der</strong>ed un<strong>der</strong> legal consi<strong>der</strong>ation 5.18 that:‘The Genocide Convention comprises as principal rule the penalization of genocide. FromArticle 1 of this Convention it is clear that theContracting Parties, including theNetherlands, un<strong>der</strong>take to prevent genocide – and therefore not to commit the crimethemselves – as well as to punish it.’The District Court also erroneously consi<strong>der</strong>ed un<strong>der</strong> legal consi<strong>der</strong>ation 5.19 that:‘Neither the text of the Genocide Convention or any other treaty, nor internationalcustomary law or the practice of states offer scope in this respect for the obligations of aNetherlands court to enforce the norms of the Genocide Convention by means of a civilaction. The Contracting Parties are obliged to punish all acts defined by this Convention asgenocide within the boundaries set in Article VI of the Convention. Also, as stated before,the states are bound to prevent genocide and therefore to refrain from committing itthemselves. The states are bound also clearly to set out obligations on the extradition ofsuspects of genocide, but the Convention does not provide for (any obligation pertainingto) the enforcement of the norms of enforcing the prohibition on genocide via a civil lawaction. It should be noted here that the International Court of Justice ruled in 2007 aboutthe substance of obligations of parties to the Genocide Convention and in that contextomitted to discuss any obligation by states to enforce the Convention by means of civil lawactions (ruling of February 26, 2007 on the application of the Convention on the Prevention<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 56 of 99
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