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Ground of appeal 14178. The District Court erroneously considered under legal consideration 5.22 that:‘The Court arrives at the same conclusion with regard to the right of access to a court oflaw safeguarded in Article 6 ECHR, a fundamental element of the right to a fair trial. Thecaselaw of the ECHR offers insufficient grounds for an interpretation of Article 6 ECHR inthe sense that in this respect it prevails over international immunities. The right of accessto a court of law is largely dependent on existing international-law obligations for itssubstance and purport.This applies in particular and in any case with respect to obligations towards the UN, as isevident from the judgments of the European Court of Human Rights dated May 31, 2007 inthe cases of Behrami v. France (no. 714/01) and Saramati v. France, Germany and Norway(no. 78166/01). In these cases the European Court of Human Rights ruled that the ECHRshould not be an impediment to the effective implementation of duties by internationalmissions in Kosovo under UN responsibility. By virtue of this, states cannot, according tothe Court, be held liable for the actions of national troops they made available forinternational peace-keeping missions. The Court concludes that this same ratio implies thatArticle 6 ECHR cannot be a ground for exception to – as said before, absolute – immunityunder international law of the UN itself. The UN therefore cannot be brought before adomestic court simply on the grounds of the right of access to a court of law guaranteed inArticle 6 ECHR.’179. The District Court has further erroneously considered under legal consideration 5.23 that:‘The Court is aware of the existence of ostensibly conflicting jurisprudence of the EuropeanCourt of Human Rights in the judgments of 18 February 1999 in the cases of Beer and Reganv. Germany (no. 26083/9) and Waite en Kennedy v. Germany (no. 26083/94). In thesejudgments the court expressed its concern that the founding of international organizationsand their corresponding immunities could be at the expense of the protection of humanrights.States may not, according to the Court, evade their obligations under the ECHR bytransferring their powers to international organisations. The Court thus appears to beadopting the view that the immunities of international organisations are compatible with© Van Diepen Van der Kroef Advocaten page 76 of 99
Article 6 ECHR only if the institutions involved offer a reasonable alternative for protectionof human rights under the ECHR. If this is not the case the ECHR prescribes that theimmunities nvoked by the international organisation are not to be respected.’180. The District Court has further erroneously considered under legal consideration 5.24 that:‘The Court does not consider it necessary in the light of this jurisprudence to investigatewhether an alternative remedy is available to the Association et al. at the UN. The Courtconsidered on this as follows. The UN was founded before the ECHR came into force. Therecan be no question therefore of a restriction of the protection of human rights under theECHR by transfer of powers to the UN. Moreover, the UN is an organisation with, as saidbefore, an almost universal membership. The international organisation that thejudgments in Beer and Regan v. Germany en Waite and Kennedy v. Germany related to,namely, the European Space Agency, was founded in 1980 and therefore some considerabletime after the entry into force of the ECHR. This organisation has a restricted – European –membership. The UN’s position therefore is very dissimilar to it. The ECHR has actuallytaken the special position of the UN as a point of departure in the aforementioned cases ofBehrami v. France and Saramati v. France, Germany and Norway. All this justifies theconclusion that motivations of the European Court of Human Rights in the cases of Beer andRegan v. Germany and Waite and Kennedy v. Germany do not apply to the UN. It deservesspecial mention that if this were the case, under the ECHR as a result of the primacy ofinternational-law immunities it is primarily that state that would be liable for not allowingaccess to a court of law within whose territory the institution in question has its seat orthe asserted wrongful act was committed. In the present case this is certainly not theNetherlands.’Explanation of ground of appeal 14181. Ground of appeal 14 addresses itself to the judgment of the District Court on the meaningand review of Article 6 ECHR and the grounds for that judgment.182. The Court correctly held under legal consideration 5.22 that the right of access to the courtlaid down in Article 6 ECHR is a fundamental right. It is incomprehensible that the Courtthen proceeds with little ceremony to hold that this fundamental right should yield beforeinternational law immunity. The judgment that holds that a human right – laid down in the© Van Diepen Van der Kroef Advocaten page 77 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
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The Article envisages a situation i
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The Hague District Public Prosecuto
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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 74 and 75: is in that connection incorrect. Th
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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