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uling of the European Court of Human Rights in Al-Adsani (to which the Association et al.will return below), it is precisely on the point of access to law that there emerges now afundamental divergence between the immunity of states and that of internationalorganisations. That divergence resides in the fact that the court of the state against whichan action is brought (in the case of Al-Adsani/Koewait) has jurisdiction. In the case of aninternational organisation there is no such national court with jurisdiction and that is whyinternational organisations have an obligation under international law to establish a legalremedy. In the case of the United Nations that obligation is laid down in section 29 of theConvention. Where another court has jurisdiction, a court may more quickly come to thejudgment that it lacks jurisdiction (see: Van der Plas, De taak van the Court en het IPR, p.265). The immunity of a state can in such case be maintained.162. There are certain rules of international law that are so important that in the event of aconflict between them other rules of international law have to yield. This higher form of lawis termed ius cogens. The District Court gives the appearance erroneously and withoutsubstantiation in law that immunity should be a form of ius cogens. The District Court heldthat there was no ground to uphold a hierarchy between different types of ius cogens. TheDistrict Court thereby implied that as a result immunity should be ius cogens. Thatimplication is unsupportable on the basis of literature and caselaw.163. The prohibition on genocide is ius cogens (see J.A. Frowein, Encyclopedia of PublicInternational Law, Volume Three, 1997, page 67). The Association et al. is conscious thatthe UN did not itself commit the genocide. The issue in this regard is the question whetherthe UN failed in its obligation under the Genocide Convention to prevent genocide.There is besides an issue of ius cogens with the violation of other human rights, such astorture, murder and rape. It was foreseeable in July 1995 that all those human rights wouldbe violated when at that time the UN failed in its undertaking to provide protection (seefurther numbers 408 through 411 in the writ of summons and the sources cited there).164. For a clear understanding of the issues the Association et al. will address more fully thejudgment of the European Court of Human Rights in the Al-Adsani Case, a case that alsorelates to the interpretation of ius cogens. The plaintiff was a citizen of the State ofKoewait who instituted an action for damages in the United Kingdom against the State ofKoewait alleging responsibility on the part of the State of Koewait for his torture andclaiming damages for the resulting physical and emotional injuries. The legal issue before© Van Diepen Van der Kroef Advocaten page 70 of 99
the European Court of Human Rights was whether the English court was correct in holdingthat immunity was attached to the State of Koewait.165. What is remarkable is that the European Court of Human Rights dismissed the appeal toArticle 6 ECHR and upheld the immunity of the State of Koewait by the smallest possiblemajority of the judges, namely, nine against eight. That indicates already that the absolutecharacter of the immunity of states is debatable under certain circumstances.166. That statement is illustrated by the various dissenting opinions in the judgment. Beforeproceeding deeper into those the Association et al. again presents the ratio decidendi of thedecision (see legal consideration 66):‘The Court, while noting the growing recognition of the overriding importance of theprohibition of torture, does not accordingly find it established that there is yet acceptancein international law of the proposition that States are not entitled to immunity in respectof civil claims for damages for alleged torture committed outside the forum State.’The use of two words in this ratio is noticeable. First, the word, ‘yet’, whereby theEuropean Court of Human Rights indicates that the passage of time might or even will leadto another view. Secondly, the word, ‘States’ in relation to the fact that immunity remainslimited to the court outside the territory of state in question.Al-Adsani could have sued Koewait in that country, in which event Koewait could not haveinvoked immunity. The Association et al., as already said, fails to perceive any suchalternative in this case.167. The dissenting opinions make it abundantly clear that in certain cases the granting ofimmunity for states is under considerable pressure and should yield to the interests of thecitizen whose rights have been violated. In the dissenting opinion of Judge Loucaides it wassaid:‘In view of the absolute nature of torture it would be a travesty of law to allow exceptionsin respect of civil liability by permitting the concept of State immunity to be relied onsuccessfully against a claim for compensation by any victim of torture. The rationalebehind the principle of international law that those responsible for atrocious acts of© Van Diepen Van der Kroef Advocaten page 71 of 99
Page 2:
Against:1. The State of the Netherl
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- 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
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eferred to the fact that the proces
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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 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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