© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
torture must be accountable is not based solely on the objectives of criminal law. It isequally valid to any legal liability whatsoever.’(…)‘In my opinion, they (addition by counsel: the relevant immunities) are incompatible withArticle 6 § 1 in all those cases where their application is automatic without a balancing ofthe incompeting interests as explained above.’168. The joint dissenting opinion of six other judges of the European Court of Human Rights(including the President) provide a clear insight into the legal reasoning that should befollowed in respect of states. All the judges agreed that the prohibition on torture is iuscogens (see legal considerations 60-61). In other words, this rule is a peremptory rule ofinternational law (see Kooijmans, op. cit., page 18). According to the dissenting opinion, inthe event of conflict between a rule that is ius cogens and another rule of international law(such as immunity), that other rule must yield (see legal consideration 1 of the dissentingopinion):‘In the event of a conflict between a jus cogens rule and any other rule of internationallaw, the former prevails. The consequence of such prevalence is that the conflicting rule isnull and void, or, in any event, does not produce legal effects which are in contradictionwith the content of the peremptory rule.’169. The following conclusion follows then from this rule of precedence (see legal consideration 3of the dissenting opinion):‘The acceptance therefore of the jus cogens nature of the prohibition of torture entailsthat a State allegedly violating it cannot invoke hierarchically lower rules (in this case,those on State immunity) to avoid the consequences of the illegality of its actions.’170. Besides the fact that it follows from the dissenting opinion that in the event of a greaterviolation of the ius cogens rule there is a great likelihood that a possible immunity wouldhave to yield, that also follows literally from the judgment itself. The European Court ofHuman Rights has explained in fact under legal consideration 55 that a balancing must beundertaken. It must be determined whether the limitation of Article 6 ECHR is proportionatein relation to the object that is sought to be effected with immunity. There is thus a clear© Van Diepen Van der Kroef Advocaten page 72 of 99
issue of a hierarchy between the different norms of ius cogens. It is therefore obvious thatas a result in the event of a greater violation or a violation of the weightier norms of iuscogens the hierarchically lower rule of immunity must first yield. The Association et al.points out the distinction between the torture of an individual (as in the Al-Adsani Case) andthe genocide of 10,000 persons that the State of the Netherlands and the UN did notprevent. The grounds underlying the decision in the judgment of the European Court ofHuman Rights and the dissenting opinion lead to the conclusion that in the case of theprohibition on genocide being a rule of ius cogens, the European Court of Human Rights willdecide that the immunity of a state would be subordinated to the rights of the individual.171. For that matter, the fact that immunity was accepted in the Al-Adsani Case (by nine of theseventeen judges) has been severely criticised (see for example A. Orakhelashvili, StateImmunity and International Public Order Revisited, German Yearbook of International Law2006, pages 327 through 365). According to the author cited there should be a hierarchy ofnorms and there should be no absolute inviolability (immunity) of states. The judgment inthe Al-Adsani Case is seen as a violation of the right that should be safeguarded by Article 6ECHR (see Orakhelashvili, op. cit., page 347):‘The Al-Adsani treatment of Art. 6 is incompatible with the principle repeatedly affirmedin the ECHR’s jurisprudence, that the Convention must be interpreted so as to make itssafeguards practical and effective, and not illusory.’(…)‘All these considerations demonstrate that Al-Adsani is an inconsistent and badly reasoneddecision that was not worth following in subsequent cases.’172. The conclusions drawn by the District Court on the basis of the Al-Adsani judgment go muchfurther than is justified by the judgment. Al-Adsani concerns the immunity of a state whereanother court had jurisdiction to hear the action brought against that state. The EuropeanCourt of Human Rights judged only on ius cogens on the basis of the violation of Article 3ECHR alleged in that case, the prohibition on torture. The conclusion of the District Courtthat no generally accepted norm exists on the ground of which applicable immunitiesexceptionally lead in the framework of civil law to enforcement of the norms of ius cogens© Van Diepen Van der Kroef Advocaten page 73 of 99
- 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 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
torture must be accountable is not based solely on the objectives of criminal law. It isequally valid to any legal liability whatsoever.’(…)‘In my opinion, they (addition by counsel: the relevant immunities) are incompatible withArticle 6 § 1 in all those cases where their application is automatic without a balancing ofthe incompeting interests as explained above.’168. The joint dissenting opinion of six other judges of the European Court of Human Rights(including the President) provide a clear insight into the legal reasoning that should befollowed in respect of states. All the judges agreed that the prohibition on torture is iuscogens (see legal consi<strong>der</strong>ations 60-61). In other words, this rule is a peremptory rule ofinternational law (see Kooijmans, op. cit., page 18). According to the dissenting opinion, inthe event of conflict between a rule that is ius cogens and another rule of international law(such as immunity), that other rule must yield (see legal consi<strong>der</strong>ation 1 of the dissentingopinion):‘In the event of a conflict between a jus cogens rule and any other rule of internationallaw, the former prevails. The consequence of such prevalence is that the conflicting rule isnull and void, or, in any event, does not produce legal effects which are in contradictionwith the content of the peremptory rule.’169. The following conclusion follows then from this rule of precedence (see legal consi<strong>der</strong>ation 3of the dissenting opinion):‘The acceptance therefore of the jus cogens nature of the prohibition of torture entailsthat a State allegedly violating it cannot invoke hierarchically lower rules (in this case,those on State immunity) to avoid the consequences of the illegality of its actions.’170. Besides the fact that it follows from the dissenting opinion that in the event of a greaterviolation of the ius cogens rule there is a great likelihood that a possible immunity wouldhave to yield, that also follows literally from the judgment itself. The European Court ofHuman Rights has explained in fact un<strong>der</strong> legal consi<strong>der</strong>ation 55 that a balancing must beun<strong>der</strong>taken. It must be determined whether the limitation of Article 6 ECHR is proportionatein relation to the object that is sought to be effected with immunity. There is thus a clear<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 72 of 99
Change language