© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
137. It was known at the UN – and by the State of the Netherlands – that a genocide threatenedin Srebrenica even before Dutchbat was despatched to Srebrenica. The UN expected alreadyin 1993 that genocide would be committed in Srebrenica. The purpose of setting up theSrebrenica Safe Area was precisely the prevention of genocide. Moreover, as appears fromthe UN Report of 30 April 1993 cited above, the Bosnian Serbs had no respect at that timefor the UN and their resolutions. The UN and the State of the Netherlands accordingly knewalready in 1993 that they could not trust that the Bosnian Serbs would respect the SafeArea. They knew that the inhabitants of the Safe Area needed protection against thethreatened genocide.138. The ICJ also held in its ruling of 26 February 2007, under legal consideration 438, that theclimate of ingrained hate between the population groups was known and that:‘(…) given all the international concern about what looked likely to happen at Srebrenica,(…), it must have been clear that there was a serious risk of genocide in Srebrenica.’139. Genocide occurred in Srebrenica and the UN and the State of the Netherlands did not doenough to prevent that genocide despite the knowledge of the UN and the State of theNetherlands that such genocide threatened. As a result, the UN and the State of theNetherlands have breached international law. The United Nations and the State of theNetherlands indeed acted contrary to the principal rule of the Genocide Convention,namely, the prevention of genocide. That is an entirely different principal rule than thattaken by the District Court as a startingpoint, namely, punishment and not oneselfcommitting genocide.Enforcing the norm of the Genocide Convention140. The District Court held under legal consideration 5.19 that neither the GenocideConvention, nor any other treaty, nor customary international law or the practice of statesgave a ground for an obligation on the Netherlands Court to uphold the norms of theGenocide Convention by way of a civil action.141. The Association et al. for the moment points out that the reference by the District Court tocustomary international law or the practice of states comes across somewhat cynically.There are no precedents for the present case. A practice can be confirmed only when© Van Diepen Van der Kroef Advocaten page 62 of 99
similar cases are brought before the court. The caselaw of the European Court of HumanRights shows very positively that in relatively less serious cases of violations of humanrights, such as acting contrary to the prohibition on torture within the meaning of Article 3ECHR, enforcement of the norm by way of civil proceedings does occur. The Association etal. refers to the ruling of the European Court of Human Rights of 21 November 2001 in thecase of Al-Adsani v. the UK (no. 35763/97). The Association et al. will address in detail thatruling in the context of the following ground of appeal.In anticipation thereof it is observed that in that case the immunity of the State of Kuwaitwas upheld because a legal remedy existed in Kuwait. It was actually self-evident for theEuropean Court of Human Rights that the prohibition on torture created a directlyenforceable right for the individual citizen.Enforcement of the norm by the individal142. The District Court observed that the ICJ in its ruling of 26 February 2007 made no mentionof any obligation on States to enforce the Genocide Convention by way of a civil action.There was no reason for any such consideration by the ICJ with the result that noconclusions can be drawn therefrom for the present case. The ruling concerned in fact aclaim by one state against another.143. Some provisons in treaties give – irrespective of the wording of the provision in question –the posibility to invoke them directly. In this case it concerns the most important provisionof the most important treaty, namely, the obligation under Article 1 of the GenocideConvention to use all means to prevent genocide. The Association et al. has the right to suethe government, a state or the organization that represents all the world’s states in respectof their obligation under that Article. The obligation to prevent genocide would degenerateinto an empty shell if it were to be dependent on the benevolence of a state to implementthe obligation in question by application to the ICJ. The fact that Bosnia-Herzegovina failedto apply to the ICJ must not entail that the State of the Netherlands and the United Nationsget away with violation of the principal obligation of the Genocide Convention. It is ratherthe (groups of) citizens who rightly should be protected against genocide and not the statesor the UN or both. A personal right in the citizens ensues therefore from the GenocideConvention.© Van Diepen Van der Kroef Advocaten page 63 of 99
- 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 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
similar cases are brought before the court. The caselaw of the European Court of HumanRights shows very positively that in relatively less serious cases of violations of humanrights, such as acting contrary to the prohibition on torture within the meaning of Article 3ECHR, enforcement of the norm by way of civil proceedings does occur. The Association etal. refers to the ruling of the European Court of Human Rights of 21 November 2001 in thecase of Al-Adsani v. the UK (no. 35763/97). The Association et al. will address in detail thatruling in the context of the following ground of appeal.In anticipation thereof it is observed that in that case the immunity of the State of Kuwaitwas upheld because a legal remedy existed in Kuwait. It was actually self-evident for theEuropean Court of Human Rights that the prohibition on torture created a directlyenforceable right for the individual citizen.Enforcement of the norm by the individal142. The District Court observed that the ICJ in its ruling of 26 February 2007 made no mentionof any obligation on States to enforce the Genocide Convention by way of a civil action.There was no reason for any such consi<strong>der</strong>ation by the ICJ with the result that noconclusions can be drawn therefrom for the present case. The ruling concerned in fact aclaim by one state against another.143. Some provisons in treaties give – irrespective of the wording of the provision in question –the posibility to invoke them directly. In this case it concerns the most important provisionof the most important treaty, namely, the obligation un<strong>der</strong> Article 1 of the GenocideConvention to use all means to prevent genocide. The Association et al. has the right to suethe government, a state or the organization that represents all the world’s states in respectof their obligation un<strong>der</strong> that Article. The obligation to prevent genocide would degenerateinto an empty shell if it were to be dependent on the benevolence of a state to implementthe obligation in question by application to the ICJ. The fact that Bosnia-Herzegovina failedto apply to the ICJ must not entail that the State of the Netherlands and the United Nationsget away with violation of the principal obligation of the Genocide Convention. It is ratherthe (groups of) citizens who rightly should be protected against genocide and not the statesor the UN or both. A personal right in the citizens ensues therefore from the GenocideConvention.<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 63 of 99
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