© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
they rely for their effectiveness on support from member states, the Convention can not beinterpreted in a manner which would subject the acts and omissions of Contracting Partieswhich are covered by UNSC Resolutions and occur prior to or in the course of such missions,to the scrutiny of the Court.To do so would be to interfere with the fulfilment of the UN’s key mission in this fieldincluding, as argued by certain parties with effective conduct of its operations.’The consideration cited relates to the interpretation of the ECHR and gives no judgment onthe issue whether the immunity of the United Nations must yield before obligations arisingunder human rights treaties or obligations under the Genocide Convention. The EuropeanCourt of Human Rights made it clear on several ocassions that the cases of Behrami andSaramati contrasted sharply with other cases decided by the European Court of HumanRights. It is thus at least premature to attach more far-reaching consequences to thesejudgments than is justified by the case itself. The Association et al. points out once morethat the present case is of a totally different order. This case transcends the individualinterest and touches the essence of international obligations for the protection of humanrights and the prohibition on genocide.188. Itis not stated anywhere in the judgments of the European Court of Human Rights regardingBehrami and Saramati – contrary to what the District Court held - that the ECHR should raiseno impediments to an effective implementation of the duties of international missions inKosovo under the responsibility of the United Nations. Quite apart from that, Article 6 of theECHR constitutes no impediment in the present proceedings to the task that was thencarried out in Srebrenica. The District Court did not make clear where such impedimentwould reside if the Association et al. were to be granted access to the Court.Implementation of the mission in Srebrenica failed – as may be inferred from the originatingwrit of summons – and its implementation is no longer susceptible of influence by legalproceedings ex post facto. Even the United Nations has held in its report that they were noteffective in their implementation of the mission. In the present case it would serve littlepurpose to question whether, and if so, which consequences should arise under civil andinternational law of the ineffective implementation of the mission. Moreover, if forwhatever reason a review had been conducted and if the United Nations had fulfilled theobligations arising under Section 29 of the Convention, it evidently would not have impededthe implementation of the mission, alternatively the review would have been found to bemore important than any possible impediments. Article 6 ECHR is involved first because the© Van Diepen Van der Kroef Advocaten page 80 of 99
United Nations has offered under Section 29 of the Convention no possibility of access to thecourt.189. In the closing sentence of legal consideration 5.23 the District Court considers that theUnited Nations could not be brought before the national court solely on the ground of theaccess to the court safeguarded by Article 6 ECHR. That conclusion certainly cannot bedrawn on the ground of the judgments of the European Court of Human Rights in Behramiand Saramati and taking Section 29 of the Convention into account.Caselaw of the ECHR: immunity of international organisations190. For a proper understanding of the European Court of Human Rights dated 18 February 1999in the Waite and Kennedy/Germany Case (no. 26083/94), which is also cited in the writ ofsummons (see point 456 et seq. of the writ of summons), the Association et al. brieflyrecalls the case. The judgment cited involved two employees of the European Space Agency,ESA, who were dismissed and brought a labour law dispute before the German court, whichheld that it did not have jurisdiction due to the immunity of ESA. The employees appealedagainst that judgment to the European Court of Human Rights, with reference to Article 6ECHR. The principal grounds for the judgment of the European Court of Human Rights are(see legal considerations 67 and 68):‘It should be recalled that the Convention is intended to guarantee not theoretical orillusory rights, but rights that are practical and effective. This is particularly true for theright of access to the courts in view of the prominent place held in a democratic society bythe right to a fair trial.(…)‘For the Court, a material factor in determining whether granting ESA immunity fromGerman jurisdiction is permissible under the Convention is whether the applicants hadavailable to them reasonable alternative means to protect effectively their rights underthe Convention.’191. Subsequently the European Court of Human Rights held under legal consideration 69 thatthe immunity invoked by ESA prevailed only because an alternative effective legal remedyexisted. That implies that in the present case immunity could not be accorded as noalternative effective legal remedy against the UN is available to the Association et al. The© Van Diepen Van der Kroef Advocaten page 81 of 99
- 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 76 and 77: Ground of appeal 14178. The Distric
- Page 78 and 79: human rights treaties, ECHR and ICC
- 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
they rely for their effectiveness on support from member states, the Convention can not beinterpreted in a manner which would subject the acts and omissions of Contracting Partieswhich are covered by UNSC Resolutions and occur prior to or in the course of such missions,to the scrutiny of the Court.To do so would be to interfere with the fulfilment of the UN’s key mission in this fieldincluding, as argued by certain parties with effective conduct of its operations.’The consi<strong>der</strong>ation cited relates to the interpretation of the ECHR and gives no judgment onthe issue whether the immunity of the United Nations must yield before obligations arisingun<strong>der</strong> human rights treaties or obligations un<strong>der</strong> the Genocide Convention. The EuropeanCourt of Human Rights made it clear on several ocassions that the cases of Behrami andSaramati contrasted sharply with other cases decided by the European Court of HumanRights. It is thus at least premature to attach more far-reaching consequences to thesejudgments than is justified by the case itself. The Association et al. points out once morethat the present case is of a totally different or<strong>der</strong>. This case transcends the individualinterest and touches the essence of international obligations for the protection of humanrights and the prohibition on genocide.188. Itis not stated anywhere in the judgments of the European Court of Human Rights regardingBehrami and Saramati – contrary to what the District Court held - that the ECHR should raiseno impediments to an effective implementation of the duties of international missions inKosovo un<strong>der</strong> the responsibility of the United Nations. Quite apart from that, Article 6 of theECHR constitutes no impediment in the present proceedings to the task that was thencarried out in Srebrenica. The District Court did not make clear where such impedimentwould reside if the Association et al. were to be granted access to the Court.Implementation of the mission in Srebrenica failed – as may be inferred from the originatingwrit of summons – and its implementation is no longer susceptible of influence by legalproceedings ex post facto. Even the United Nations has held in its report that they were noteffective in their implementation of the mission. In the present case it would serve littlepurpose to question whether, and if so, which consequences should arise un<strong>der</strong> civil andinternational law of the ineffective implementation of the mission. Moreover, if forwhatever reason a review had been conducted and if the United Nations had fulfilled theobligations arising un<strong>der</strong> Section 29 of the Convention, it evidently would not have impededthe implementation of the mission, alternatively the review would have been found to bemore important than any possible impediments. Article 6 ECHR is involved first because the<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 80 of 99
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