© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
eason enjoys immunity from jurisdiction’ (see paragraph 262 of the Judgment). Theposition of the State of the Netherlands also reappears in these proceedings. The DistrictCourt also gave its judgment in line with the grounds quoted. Both the Advocate-Generaland the Court of Justice gave short shrift to the position quoted.Opinion of Advocate-General to the Court of Justice of the EU203. Advocate-General M. Poiares Maduro expressed his view of the Al-Barakat Case in hisOpinion of 23 January 2008. The Opinion is instructive to read and presents a well-foundedview of the European Community legal order in relation to other international obligations.The Association et al. cannot here neglect to refer to the Advisory Opinion of the PublicProsecutor’s Department of 7 November 2007 and its Memorandum of Pleadings of 18 June2008. As was observed at the hearing of 18 June 2008 at the time of the rejoinder, theAdvisory Opinion of the Public Prosecutor’s Department should have had the character of alegal opinion. The Opinion of Advocate-General Poiares Maduro is a good example of such anopinion before a court: reasoned and conscious of the interests of both sides. In contrastwith that, the few pages submitted in these proceedings by the Public Prosecutor’sDepartment cannot withstand even the most minimal criticism. It is a one-sided documentin which the position of the State of the Netherlands and the United Nations is adoptedalmost literally but without any mention of the extensive reasoning of the Association et al.The Public Prosecutor’s Department has not only ignored the great importance of this case,which raises the issue of where the responsibility for allowing genocide lies, but also actedcontrary to the legal tradition governing the submission of an Advisory Opinion by the PublicProsecutor’s Department.204. As there is little to add to the Opinion of Advocate-General Poiares Maduro, the Associationet al. here cites a number of core considerations:‘21. The logical starting point of our discussion should, of course, be the landmarkruling in Van Gend en Loos, in which the Court affirmed the autonomy of theCommunity legal order. The Court held that the Treaty is not merely an agreementbetween States, but an agreement between the peoples of Europe. It consideredthat the Treaty had established a ‘new legal order’, beholden to, but distinct fromthe existing legal order of public international law. In other words, the Treaty has© Van Diepen Van der Kroef Advocaten page 86 of 99
created a municipal legal order of trans-national dimensions, of which it forms the‘basic constitutional charter’.‘24. All these cases have in common that, although the Court takes great care torespect the obligations that are incumbent on the Community by virtue ofinternational law, it seeks, first and foremost, to preserve the constitutionalframework created by the Treaty. Thus, it would be wrong to conclude that, oncethe Community is bound by a rule of international law, the Community Courts mustbow to that rule with complete acquiescence and apply it unconditionally in theCommunity legal order. The relationship between international law and theCommunity legal order is governed by the Community legal order itself, andinternational law can permeate that legal order only under the conditions set bythe constitutional principles of the Community.’‘32. Besides, the obligations under Article 307 EC and the related duty of loyalcooperation flow in both directions: they apply to the Community as well as to theMember States. The second paragraph of Article 307 EC provides that ‘the MemberState or States concerned shall take all appropriate steps to eliminate …incompatibilities’ between their prior treaty obligations and their obligationsunder Community law. To this end, Member States shall ‘assist each other … andshall, where appropriate adopt a common attitude’. That duty requires MemberStates to exercise their powers and responsibilities in an international organisationsuch as the United Nations in a manner that is compatible with the conditions setby the primary rules and the general principles of Community law. As Members ofthe United Nations, the Member States, and particularly – in the context of thepresent case – those belonging to the Security Council, have to act in such a way asto prevent, as far as possible, the adoption of decisions by organs of the UnitedNations that are liable to enter into conflict with the core principles of theCommunity legal order. The Member States themselves, therefore, carry aresponsibility to minimise the risk of conflicts between the Community legal orderand international law.’‘34. The implication that the present case concerns a ‘political question’, in respect ofwhich even the most humble degree of judicial interference would beinappropriate, is, in my view, untenable. The claim that a measure is necessary for© Van Diepen Van der Kroef Advocaten page 87 of 99
- 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 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 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
created a municipal legal or<strong>der</strong> of trans-national dimensions, of which it forms the‘basic constitutional charter’.‘24. All these cases have in common that, although the Court takes great care torespect the obligations that are incumbent on the Community by virtue ofinternational law, it seeks, first and foremost, to preserve the constitutionalframework created by the Treaty. Thus, it would be wrong to conclude that, oncethe Community is bound by a rule of international law, the Community Courts mustbow to that rule with complete acquiescence and apply it unconditionally in theCommunity legal or<strong>der</strong>. The relationship between international law and theCommunity legal or<strong>der</strong> is governed by the Community legal or<strong>der</strong> itself, andinternational law can permeate that legal or<strong>der</strong> only un<strong>der</strong> the conditions set bythe constitutional principles of the Community.’‘32. Besides, the obligations un<strong>der</strong> Article 307 EC and the related duty of loyalcooperation flow in both directions: they apply to the Community as well as to theMember States. The second paragraph of Article 307 EC provides that ‘the MemberState or States concerned shall take all appropriate steps to eliminate …incompatibilities’ between their prior treaty obligations and their obligationsun<strong>der</strong> Community law. To this end, Member States shall ‘assist each other … andshall, where appropriate adopt a common attitude’. That duty requires MemberStates to exercise their powers and responsibilities in an international organisationsuch as the United Nations in a manner that is compatible with the conditions setby the primary rules and the general principles of Community law. As Members ofthe United Nations, the Member States, and particularly – in the context of thepresent case – those belonging to the Security Council, have to act in such a way asto prevent, as far as possible, the adoption of decisions by organs of the UnitedNations that are liable to enter into conflict with the core principles of theCommunity legal or<strong>der</strong>. The Member States themselves, therefore, carry aresponsibility to minimise the risk of conflicts between the Community legal or<strong>der</strong>and international law.’‘34. The implication that the present case concerns a ‘political question’, in respect ofwhich even the most humble degree of judicial interference would beinappropriate, is, in my view, untenable. The claim that a measure is necessary for<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 87 of 99
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