© Van Diepen Van der Kroef Advocaten

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is liable to become overly responsive to immediate popular concerns, leading theauthorities to allay the anxieties of the many at the expense of the rights of a few.This is precisely when courts ought to get involved, in order to ensure that thepolitical necessities of today do not become the legal realities of tomorrow. Theirresponsibility is to guarantee that what may be politically expedient at a particularmoment also complies with the rule of law without which, in the long run, nodemocratic society can truly prosper. (…)’‘49. (…) As to the right to effective judicial review, the Court has held: ‘The EuropeanCommunity is … a community based on the rule of law in which its institutions aresubject to judicial review of the compatibility of their acts with the Treaty andwith the general principles of law which include fundamental rights. (…) ndividualsare therefore entitled to effective judicial protection of the rights they derivefrom the Community legal order, and the right to such protection is one of thegeneral principles of law stemming from the constitutional traditions common tothe Member States (…)’‘52. The right to effective judicial protection holds a prominent place in the (…)fundamental rights. While certain limitations on that right might be permitted ifthere are other compelling interests, it is unacceptable in a democratic society toimpair the very essence of that right. As the European Court of Human Right held inKlass and Others, ‘the rule of law implies, inter alia, that an interference by theexecutive authorities with an individual’s rights should be subject to an effectivecontrol which should normally be assured by the judiciary, at least in the lastresort, judicial control offering the best guarantees of independence, impartialityand a proper procedure.’”‘54. Had there been a genuine and effective mechanism of judicial control by anindependent tribunal at the level of the United Nations, then this might havereleased the Community from the obligation to provide for judicial control ofimplementing measures that apply within the Community legal order. However, nosuch mechanism currently exists. As the Commission and the Council themselveshave stressed in their pleadings, the decision whether or not to remove a personfrom the United Nations sanctions list remains within the full discretion of the© Van Diepen Van der Kroef Advocaten page 90 of 99
Sanctions Committee – a diplomatic organ. In those circumstances, it must be heldthat the right to judicial review by an independent tribunal has not been secured atthe level of the United Nations. As a consequence, the Community institutionscannot dispense with proper judicial review proceedings when implementing theSecurity Council resolutions in question within the Community legal order.’Judgment of the Court of Justice205. The case of Kadi was joined with the case of Al-Barakat in the judgment of the Court ofJustice. It was discussed above that the State of the Netherlands (together with a number ofother countries) intervened in the proceedings. The position of the State of the Netherlandswas addressed in the following legal considerations:‘262. Conversely, the French Republic, the Kingdom of the Netherlands, the UnitedKingdom and the Council approve, in essence, the analysis made in that connection by theCourt of First Instance in the judgments under appeal and endorse the conclusion drawntherefrom that, so far as concerns the internal lawfulness of the contested regulation, thelatter, inasmuch as it puts into effect resolutions adopted by the Security Council pursuantto Chapter VII of the Charter of the United Nations, in principle escapes all review by theCommunity judicature, even concerning observance of fundamental rights, and so for thatreason enjoys immunity from jurisdiction.’‘263. However, unlike the Court of First Instance, those parties take the view that noreview of the internal lawfulness of resolutions of the Security Council may be carried outby the Community judicature. They therefore complain that the Court of First Instancedecided that such review was possible in the light of jus cogens.’‘265. Further, the French Republic, the Kingdom of the Netherlands, the United Kingdomand the Commission consider that the Court of First Instance erred in law when it ruledthat the fundamental rights at issue in these cases fell within the scope of jus cogens.’‘268. For their part, the French Republic and the Kingdom of the Netherlands suggestthat the Court should undertake a replacement of grounds, claiming that Mr Kadi’s and AlBarakaat’s pleas in law relating to jus cogens should be dismissed by reason of the absolute© Van Diepen Van der Kroef Advocaten page 91 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
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functional necessity. In that conte
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only in Germany. It was not dispute
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immunity of the UN has no absolute
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‘Darüber hinaus kann gefragt wer
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the purpose would become subservien
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exercise of their functions in conn
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) 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 86 and 87: eason enjoys immunity from jurisdic
Page 88 and 89: the maintenance of international pe
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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