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is in that connection incorrect. The present case concerns after all the immunity of aninternational organisation and violation of the norms arising under the prohibition ongenocide (beside numerous other norms for the protection of human rights).173. The District Court has erroneously not drawn a distinction between the position of a stateand that of an international organisation. In addition, the District Court erroneously drawsno distinction between the different forms of ius cogens. The District Court should have heldthat given the fact that the immunity of the United Nations has the purpose of preventingviolations of human rights, the relation between the prohibition on genocide as ius cogensand immunity is entirely different than in the Al-Adsani Case. In that case it was notgenocide that was at issue but the torture of an individual.174. There is no higher norm in international law than the prohibition on genocide. Itsenforcement is an important reason for the existence of international law and the mostimportant international organisation, the UN. That entails that where genocide has not beenprevented no immunity attaches to the international organisation. No greater recriminationcan be made indeed of an international organisation, except the actual commission ofgenocide.That is irreconcilable with the functional character of the immunity of the UN. The DistrictCourt should have concluded that there was a violation of ius cogens and the interests of theAssociation et al. weighed more heavily than the interest of the UN in immunity. Thedecision that the immunity of the United Nations is absolute would mean that the UnitedNations had an absolute power and was not subject to the rule of law, the principle that nooneis above the law and that power is limited and regulated by the law. The DistrictCourt’s judgment rejects that principle. A limitless immunity of the United Nations isunacceptable and undermines the credibility of the United Nations as the important fighterfor human rights.175. The Association et al. is with the above of the view that in these proceedings the Secretary-General of the United Nations had the obligation to waive any possible right to immunity.Indeed, a similar rule is contained in the Convention in various Articles dealing with theimmunity of Member States, officials and experts (see Articles 14, 20 and 23), to the effectthat a review should be conducted to ascertain whether the course of the law is impeded by© Van Diepen Van der Kroef Advocaten page 74 of 99
any grant of immunity. Should that interference not damage the interests of the UnitedNations, the claim to immunity should yield. The Association et al. wonders how giving anaccount of the non-prevention of genocide could damage the interests of the UnitedNations. One of the primary interests of the United Nations is after all the prevention ofgenocide as a peremptory norm of international law (ius cogens). The consideration by theDistrict Court that it is not for the District Court to prioritise conflicting norms ofinternational law, fails to understand the significance of the peremptory character of iuscogens in its relationship to the prohibition on genocide and the serious violation of humanrights, in relation to the subordinate international law concept of immunity of the UnitedNations.Ground of appeal 13176. The District Court erroneously considered under legal consideration 5.21 that:‘The Court concludes from what it stated in 5.18-5.20 that no grounds can be derived fromthe the Genocide Convention or similar mandatory international-law norms alligned withit, such as the prohibition on torture, for an exception to the norm referred to above ofthe UN’s absolute immunity. This means that the Court does not get to a prioritizing ofconflicting international-law norms. There is no scope for a weighing of interests such as isadvocated by the Association et al.’Explanation of ground of appeal 13177. Legal consideration 5.21 is a summary of earlier legal considerations of the Court andcontains no supportive components of the reasoning. That does not obviate the fact thatwhat the District Court considers as pertinent is incorrect. The Association et al.refers towhat has been asserted in the above grounds of appeal, in particular the grounds of appealrelating to legal considerations 5.18 through 5.20 and the explanations thereto.© Van Diepen Van der Kroef Advocaten page 75 of 99
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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
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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 70 and 71: uling of the European Court of Huma
Page 72 and 73: torture must be accountable is not
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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