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- the motion by the State of the Netherlands in interim proceedings, dated 12 December2007;- the statement of defence presented by the Association et al., dated 6 February 2008;- memorandum of oral pleadings of the attorneys appearing for the State of theNetherlands, dated 18 June 2008;- verbal explanation by the Public Prosecutions Department, dated 18 June 2008;- memorandum of oral pleadings of the attorneys appearing for the Association et al., dated18 June 2008;- contested judgment, dated 10 July 2008;9. By filing writs of summons dated 7 October 2008 the Association et al. have appealed in duetime from the judgment of 10 July 2008. Furthermore, the notice of appeal was sent bycourier to the United Nations. Service on the United Nations has been confirmed to theAssociation et al. The record of service and the sending by courier of the (translated intoEnglish version of) the judgment of the District Court of 10 July 2008 constitutes moreoverpresentation to the United Nations for inspection.Grounds of appeal10. The grounds of appeal set out below are lodged against the judgment. The Association et al.will in setting out the grounds of appeal maintain as far as possible the order applied by theDistrict Court in the contested judgment.Ground of appeal 111. The District Court incorrectly reproduced the claim of the Association et al. under legalconsideration 2.1 under point (5) as follows:‘orders the UN and the State, jointly and severally, to pay to Fejzi! et al. an advance in theamount of " 10,000 each on the compensation referred to under (4).’Explanation12. The writ of summons dated 4 June 2007 states on page 203 under point (5) of the petition:© Van Diepen Van der Kroef Advocaten page 6 of 99
‘to hold the United Nations and the State of the Netherlands jointly and severally liable topay Plaintiff under 1 through 10 an advance of EUR 25,000 per person of the compensationto be awarded, as claimed under point 4 of the petition;’13. Contrary to what the District Court thought, it was not an advance of EUR 10,000 on thecompensation claimed but rather an advance of EUR 25,000. Even though the determinationby the District Court is not a determinative factor in the grounds for or the decision onjurisdiction, the Association et al. self-evidently has an interest in not being bound by thisincorrect determination by the District Court.Ground of appeal 214. The District Court has incorrectly summarised the defence of the Association et al. underlegal consideration 3.4 as follows:‘(1) Only the UN itself can, if it appeared, invoke its possible immunity. Since itdeliberately failed to appear, an assessment of the defence of lack of jurisdiction is out oforder. The motions by the State are devious tricks, now that the State is expected to arguein the main proceedings that not the State but the UN is responsible for the eventsreferred to in the main proceedings. Legally, humanly and morally this is unacceptable.’Continuing on from this rendition the District Court incorrectly held under legalconsideration 5.6 that:‘The State’s own interest in its interim motion follows particularly from its obligationunder international law by virtue of article 105 paragraph 1 of the UN Charter. Under thistreaty the State has bound itself to safeguard as much as possible the immunity laid downin the Charter, irrespective of how far it extends. Pleading this immunity in proceedingsbefore a national court of law at least falls within the bounds of possibility. It is notimportant in this regard that the State itself is also a defendant, in this case alongside theUN. Now that the State is a party to the proceedings in its own right, it does not need tofollow the – in principle much more cumbersome – course of an interim motion of thirdpartyintervention. Neither does the possibility of which the State now makes use prejudicethe fact that in our system of law there are also other options for (organs of) the State toobtain a Court’s ruling on its jurisdiction regarding a non-appearing defendant. All these© Van Diepen Van der Kroef Advocaten page 7 of 99
Page 2: Against:1. The State of the Netherl
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 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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