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The whole point of the Genocide Convention is the purpose of protecting people and layingdown elementary norms and not, as the District Court held, the punishment of genocide.130. After the ICJ ruled that genocide had been committed in Srebrenica, the ICJ followed thatin its ruling of 26 February 2007 with the determination that the prevention of genocidewithin the meaning of Article 1 of the Genocide Convention is an autonomous obligation. Itis not an introduction to the more specific obligations contained in the GenocideConvention. The ICJ ruled on the obligation within the meaning of Article I of the GenocideConvention as follows (see legal consideration 155 et seq., with the conclusion under legalconsideration 165):‘(…) confirm that Article I does impose distinct obligations over and above those imposedby other Articles of the Convention. In particular, the Contracting Parties have a directobligation to prevent genocide.’131. Article VIII of the Genocide Convention provides that any Contracting Party to theConvention may call upon the UN in order to prevent and suppress genocide. The duty toprevent genocide within the meaning of Article I of the Genocide Convention entails muchmore than merely calling upon the UN. The ICJ in its ruling of 26 February 2007 laid downthat the Contracting Parties to the Convention are under the obligation to take all necessarymeasures to prevent genocide, even where the UN has already been involved (see legalconsideration 427).132. The ICJ ruled further that the obligation to prevent genocide is not a result obligation butan obligation of conduct. Nonetheless, that obligation of conduct goes very far. All possiblemeasures must be taken to prevent genocide. A State is not responsible because the desiredresult is not achieved but is certainly responsible if all measures that lay in the power ofthat State were not taken. The violation of Article I of the Genocide Convention (idem) alsooccurs even if the deployment by the State of all the means available could not haveprevented the genocide (see legal consideration 430 of the ICJ ruling dated 26 February2007):‘(…) it is clear that the obligation in question is one of conduct and not one of result, in thesense that a State cannot be under an obligation to succeed, whatever the circumstances,© Van Diepen Van der Kroef Advocaten page 58 of 99
in preventing the commission of genocide: the obligation of States parties is rather toemploy all means reasonably available to them, so as to prevent genocide so far aspossible. A State does not incur responsibility simply because the desired result is notachieved; responsibility is however incurred if the State manifestly failed to take allmeasures to prevent genocide which were within its power, and which might havecontributed to preventing the genocide. In this area the notion of “due diligence”, whichcalls for an assessment in concreto, is of critical importance. Various parameters operatewhen assessing whether a State has duly discharged the obligation concerned. The first,which varies greatly from one State to another, is clearly the capacity to influenceeffectively the action of persons likely to commit, or already committing, genocide.This capacity itself depends, among other things, on the geographical distance of the Stateconcerned from the scene of the events, and on the strength of the political links, as wellas links of all other kinds, between the authorities of that State and the main actors in theevents. The State’s capacity to influence must also be assessed by legal criteria, since it isclear that every State may only act within the limits permitted by international law; seenthus, a State’s capacity to influence may vary depending on its particular legal position visà-visthe situations and persons facing the danger, or the reality of genocide. On the otherhand, it is irrelevant whether the State whose responsibility is in issue claims, or evenproves, that even if it had employed all means reasonably at its disposal, they would nothave sufficed to prevent the commission of genocide. As well as being generally difficult toprove, this is irrelevant to the breach of the obligation of conduct in question, the more sosince the possibility remains that the combined efforts of several States, each complyingwith its obligation to prevent, might have achieved the result – averting the commission ofgenocide – which the efforts of only one State were insufficient to produce.’133. The Association et al. makes the incidental comment that the UN and the State of theNetherlands breached their obligation to deploy all means to prevent genocide. Thatappears from the facts set out in the originating writ of summons. The State of theNetherlands despatched Dutchbat when it was inadequately armed and trained. Thearmament that was sent with the troops was not deployed when that was required. The UNand the State of the Netherlands should have protected the population in accordance withthe agreements made and undertakings given. The Close Air Support was not deployed,alternatively not deployed in good time and adequately. Furthermore, the eventual airattack of 11 July 1995 (the day that the Srebrenica Safe Area would fall) was recalledthrough the fault of the State of the Netherlands. As a result, everything was not done to© Van Diepen Van der Kroef Advocaten page 59 of 99
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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 54 and 55: desirable that national courts do n
Page 56 and 57: evidence of the necessity of conduc
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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