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Convention and the Geneva Conventions were brought into being precisely to protectcivilian populations, and thus also individual civilians, from outrages. The same applies toArticle 2 paragraph 1 ECHR and Article 6 paragraph 1 of the I CCPR, which primarily concernthe protection of the individual.157. The fact that the state of Bosnia-Herzegovina could itself also bring claims against the UNand the State of the Netherlands does not concern the Association et al. in the presentdispute. After all, the state of Bosnia-Herzegovina has in the past fourteen years notinstituted any claim and has to the present given no indication of any such intention.158. Besides a direct right under the treaties cited above it is also the case that the treaties inquestion also in part determine what is unlawful and what is not, and thus influence thenorm of Article 6:162 paragraph 2 BW. Article 6:162 paragraph 2 BW reads:‘The violation of a right and an act or omission violating a statutory duty or a rule ofunwritten law pertaining to proper social conduct shall be deemed to be an unlawful actunless there exists a ground of justification.’It was set out repeatedly above how the State of the Netherlands and the United Nationsviolated the rights of the Association et al. (alternatively, the rights of the persons whoseinterests the Association promotes). The District Court failed to address the fact that afailure to prevent genocide is without doubt not something that pertains to proper socialconduct. We are concerned here after all with the military under a particular obligation toprotect the population of the Safe Area.159. In the light of Article 6:162 paragraph 2 BW (Dutch Civil Code) it is of concern that criminallaw provisions or provisions in treaties that impose specific obligations of states are virtuallynever incorporated literally into the civil code. That does not nullify the fact that conductcontrary to criminal law provisions can certainly give rise to grounds of liability under civillaw. The Burgerlijk Wetboek (Civil Code of the Netherlands) does not prohibit causing harmto another. Causing harm to another is however unlawful under the civil law and gives riseto an obligation to provide compensation therefor. Unlawfulness leads to liability. What isunlawful is determined by acting or failing to act in violation of a statutory duty or a rule of© Van Diepen Van der Kroef Advocaten page 68 of 99
unwritten law pertaining to proper social conduct. The Genocide Convention is certainly ofthe greatest possible importance for the interpretation of those norms.Ground of appeal 12160. The District Court erroneously considered under legal consideration 5.20 that:‘In its judgment of November 21, 2001 the European Court of Human Rights ruled in thecase of Al-Adsani v. the UK (No. 35763/97) that there is no scope for any encroachment onthe immunity that in principle exists of a national state, in that case Koewait, in thecontext of a civil action alleging violation of the prohibition on torture laid down inArticle 3 ECHR. As there is no evidence that the European Court for Human Rightssubsequently departed from this line the Court concludes that there is no generallyaccepted norm in international-law practice on the basis of which current immunities allowexception, within the framework of enforcement in civil law, of the norms of ius cogens,like the prohibitions on genocide and torture. That the issue in this case was therelationship between state immunity and the prohibition on torture and not therelationship between the immunity of international organizations and the prohibition ongenocide does not lead to a different opinion in the present case. Just as there is no basisfor a hierarchy between different types of immunity, so there are no grounds for ahierarchy between different norms of ius cogens.’Explanation of ground of appeal 12161. It is incomprehensible that the District Court cites a case that concerns the immunity of astate in support of its decision that the United Nations enjoys immunity. The District Courthad indeed already held under legal consideration 5.11 that the immunity of states differedstrongly from the immunity of international organisations and that no form of hierarchyexisted between the two forms of immunity. Given the correctness of that determinationcan the judgment that a state also enjoys immunity in the event of violation of ius cogensnot also draw the conclusion that the same would apply to an international organisation.Quite apart from the fact that the District Court incorrectly and incompletely interprets the© Van Diepen Van der Kroef Advocaten page 69 of 99
Page 2:
Against:1. The State of the Netherl
Page 6 and 7:
- the motion by the State of the Ne
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options exist side by side and do n
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22. The Public Prosecutions Departm
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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 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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