© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
151. The Basic Principles provide that individuals who are the victim of a gross violation of humanrights or of international humanitarian law can enforce their rights equally as a state underinternational law. The Member States must ensure that victims have equal access to allappropriate legal remedies in order to be able to exercise their rights. See Article VIII,number 12 through 14 of the Basic Principles which provides that:‘A victim of a gross violation of international human rights law or of a serious violation ofinternational humanitarian law shall have equal access to an effective judicial remedy asprovided for under international law. (…) Obligations arising under international law tosecure the right to access justice and fair and impartial proceedings shall be reflected indomestic laws. To that end, States should:(…)(d) Make available all appropriate legal, diplomatic and consular means to ensure thatvictims can exercise their rights to remedy for gross violations of international humanrights law or serious violations of international humanitarian law.’Under Article VIII, number 13 of the Basic Principles a Member State must ensure that notonly individuals but also groups of victim can enforce their rights. The Associationconstitutes a group of victims within the meaning of Article VIII number 13 of the BasicPrinciples.152. This case concerns a very large group of victims of gross violations of human rights, such asthe right to life and to humanitarian aid. Moreover, the mandate of the UN included theprotection of human rights. The resolutions adopted by the Security Council ordered theprotection of the Safe Area and of the civilians in that area. Given that the object of theresolution was the protection of human life, UN Resolutions 836 and 844 also give directrights to individuals.153. Both the CAVV Report and the Basic Principles lead to the result that the Association et al.can enforce its rights derived from international law before the Netherlands Court. As thatapplies to gross violations of human rights, it applies all the more to the violation of theobligations under the Genocide Convention.The Association et al. has a claim against the UN and the State of the Netherlands underinternational law as the norms of international law that have been breached confer directrights on the individual (see CAVV Report, nos. 3.5.1 and 3.5.2).© Van Diepen Van der Kroef Advocaten page 66 of 99
154. The Basic Principles provide also that victims have a right to compensation whererestoration of the situation prior to the injury-causing facts is not possible. Compensationcan be awarded for, inter alia, physical or mental harm, lost opportunities, includingemployment, education and social benefits. Compensation can also be awarded for materialdamage and loss of earnings and for moral damage (see Article IX, number 20 of the BasicPrinciples). Given the above the UN and the State of the Netherlands should paycompensation to the Association et al. under international law. A court with jurisdiction isobviously necessary for that, without which no right can be enforced.155. In addition to the Basic Principles discussed above the Association et al. refers to Article 93of the Netherlands Constitution in connection with the possibility as an individual toentitlement under provisions of international treaties. Article 93 of the Constitutionprovides:‘Provisions of treaties and of resolutions by international institutions, which may bebinding on all persons by virtue of their contents shall become binding after they have beenpublished.’This direct applicability of international treaties in the Netherlands legal order is ofimportance where the international treaties also contain self-executing provisions. ‘Selfexecutingprovisions’ are provisions that have binding force on civilians (private persons),including legal persons under private law (see J.W.A. Fleuren, Tekst & Commentaar,Grondwet, 2004, Article 93 number 3). Whether an international treaty contains a selfexecutingprovision is exclusively for the judgment of the Netherlands Court (see F.M.C.Vlemminx and M.G. Boekhorst, De Grondwet, 2000, Article 93 number 7; J.W.A. Fleuren, op.cit., number 4 under reference to the relevant Parliamentary papers; P. van Dijk and B.G.Tahzib in S.A. Riesenfeld and F.M. Abbott, Parliamentary Participation in the Making andOperation of Treaties, 1994, page 113).156. The self-executing character of such provisions in international treaties must be tested bythe Netherlands Court as a matter of fact. In the present case the Genocide Convention, theGeneva Conventions and the ECHR have found their way into the Netherlands legal systemas international treaties via Article 93 of the Netherlands Constitution. The Genocide© Van Diepen Van der Kroef Advocaten page 67 of 99
- 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
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- 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 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
154. The Basic Principles provide also that victims have a right to compensation whererestoration of the situation prior to the injury-causing facts is not possible. Compensationcan be awarded for, inter alia, physical or mental harm, lost opportunities, includingemployment, education and social benefits. Compensation can also be awarded for materialdamage and loss of earnings and for moral damage (see Article IX, number 20 of the BasicPrinciples). Given the above the UN and the State of the Netherlands should paycompensation to the Association et al. un<strong>der</strong> international law. A court with jurisdiction isobviously necessary for that, without which no right can be enforced.155. In addition to the Basic Principles discussed above the Association et al. refers to Article 93of the Netherlands Constitution in connection with the possibility as an individual toentitlement un<strong>der</strong> provisions of international treaties. Article 93 of the Constitutionprovides:‘Provisions of treaties and of resolutions by international institutions, which may bebinding on all persons by virtue of their contents shall become binding after they have beenpublished.’This direct applicability of international treaties in the Netherlands legal or<strong>der</strong> is ofimportance where the international treaties also contain self-executing provisions. ‘Selfexecutingprovisions’ are provisions that have binding force on civilians (private persons),including legal persons un<strong>der</strong> private law (see J.W.A. Fleuren, Tekst & Commentaar,Grondwet, 2004, Article 93 number 3). Whether an international treaty contains a selfexecutingprovision is exclusively for the judgment of the Netherlands Court (see F.M.C.Vlemminx and M.G. Boekhorst, De Grondwet, 2000, Article 93 number 7; J.W.A. Fleuren, op.cit., number 4 un<strong>der</strong> reference to the relevant Parliamentary papers; P. van Dijk and B.G.Tahzib in S.A. Riesenfeld and F.M. Abbott, Parliamentary Participation in the Making andOperation of Treaties, 1994, page 113).156. The self-executing character of such provisions in international treaties must be tested bythe Netherlands Court as a matter of fact. In the present case the Genocide Convention, theGeneva Conventions and the ECHR have found their way into the Netherlands legal systemas international treaties via Article 93 of the Netherlands Constitution. The Genocide<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 67 of 99
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