© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
would occupy in the hierarchy of norms within the Community legal order if thoseobligations were to be classified in that hierarchy.’‘321. In any event, the existence, within that United Nations system, of the reexaminationprocedure before the Sanctions Committee, even having regard to theamendments recently made to it, cannot give rise to generalised immunity fromjurisdiction within the internal legal order of the Community.’‘322. Indeed, such immunity, constituting a significant derogation from the scheme ofjudicial protection of fundamental rights laid down by the EC Treaty, appears unjustified,for clearly that re-examination procedure does not offer the guarantees of judicialprotection.’‘326. It follows from the foregoing that the Community judicature must, in accordancewith the powers conferred on it by the EC Treaty, ensure the review, in principle the fullreview, of the lawfulness of all Community acts in the light of the fundamental rightsforming an integral part of the general principles of Community law, including review ofCommunity measures which, like the contested regulation, are designed to give effect tothe resolutions adopted by the Security Council under Chapter VII of the Charter of theUnited Nations.’‘327. The Court of First Instance erred in law, therefore, when it held, in paragraphs 212to 231 of Kadi and 263 to 282 of Yusuf and Al Barakaat, that it followed from the principlesgoverning the relationship between the international legal order under the United Nationsand the Community legal order that the contested regulation, since it is designed to giveeffect to a resolution adopted by the Security Council under Chapter VII of the Charter ofthe United Nations affording no latitude in that respect, must enjoy immunity fromjurisdiction so far as concerns its internal lawfulness save with regard to its compatibilitywith the norms of jus cogens.’‘335. According to settled case-law, the principle of effective judicial protection is ageneral principle of Community law stemming from the constitutional traditions common tothe Member States, which has been enshrined in Articles 6 and 13 of the ECHR, thisprinciple having furthermore been reaffirmed by Article 47 of the Charter of fundamentalrights of the European Union, proclaimed on 7 December 2000 in Nice. (…)’© Van Diepen Van der Kroef Advocaten page 94 of 99
206. That case concerned European Community measures. The case shows that the EuropeanCourt of Justice in order to protect European citizens considers a review of the fundamentalrights of the European Community legal order to be necessary also in cases of resolutionsderiving from the Charter of the United Nations. In addition, the Court of Justice held thatan effective legal protection is a fundamental right within the European Community legalorder, and which may not be violated. The District Court has erroneously ignored thesefundamental rights of the Association et al. by holding that absolute immunity should attachto the United Nations.Other legal considerations of the District Court207. The District Court stated in the closing two sentences of legal consideration 5.24 that underthe ECHR it is primarily that state within whose territory the wrongful act was committedthat would be liable for not allowing access to a court of law. According to the District Courtthat state is not the Netherlands. The District Court incorrectly failed to provide anygrounds for that assertion and without that the comment is incomprehensible. To the extentthat the District Court meant that another court would have territorial jurisdiction theAssociation et al. would point out that the ECHR does not assign territorial jurisdiction. Thenormal rules apply there, that in the result mean that the District Court, The Hague hasjurisdiction (see paragraphs 289 through 292 of the writ of summons at first instance).208. It follows from the above that the limitations attached to Article 6 ECHR by the DistrictCourt are incorrect. The District Court’s interpretation of Article 6 ECHR errs at law. Therights under Article 6 ECHR remain safeguarded even where the interests of the UnitedNations may possibly be affected. The European Community legal order implies that theseare not ranked as subordinate to the legal order of the United Nations. Matters that ariseunder UN resolutions can also be reviewed against the human rights that are safeguarded bythe ECHR.The Member States, including the Netherlands, must ensure that this European Communitylegal order – including the human rights arising under, inter alia, Article 6 ECHR – issafeguarded. In any event, the line of reasoning that the ECHR would not apply because itpost-dates the founding of the United Nations is insupportable.© Van Diepen Van der Kroef Advocaten page 95 of 99
- 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 90 and 91: is liable to become overly responsi
- Page 92 and 93: lack of jurisdiction of the Communi
- Page 96 and 97: 209. To conclude, the Association e
- Page 98 and 99: Explanation of ground of appeal 172
206. That case concerned European Community measures. The case shows that the EuropeanCourt of Justice in or<strong>der</strong> to protect European citizens consi<strong>der</strong>s a review of the fundamentalrights of the European Community legal or<strong>der</strong> to be necessary also in cases of resolutions<strong>der</strong>iving from the Charter of the United Nations. In addition, the Court of Justice held thatan effective legal protection is a fundamental right within the European Community legalor<strong>der</strong>, and which may not be violated. The District Court has erroneously ignored thesefundamental rights of the Association et al. by holding that absolute immunity should attachto the United Nations.Other legal consi<strong>der</strong>ations of the District Court207. The District Court stated in the closing two sentences of legal consi<strong>der</strong>ation 5.24 that un<strong>der</strong>the ECHR it is primarily that state within whose territory the wrongful act was committedthat would be liable for not allowing access to a court of law. According to the District Courtthat state is not the Netherlands. The District Court incorrectly failed to provide anygrounds for that assertion and without that the comment is incomprehensible. To the extentthat the District Court meant that another court would have territorial jurisdiction theAssociation et al. would point out that the ECHR does not assign territorial jurisdiction. Thenormal rules apply there, that in the result mean that the District Court, The Hague hasjurisdiction (see paragraphs 289 through 292 of the writ of summons at first instance).208. It follows from the above that the limitations attached to Article 6 ECHR by the DistrictCourt are incorrect. The District Court’s interpretation of Article 6 ECHR errs at law. Therights un<strong>der</strong> Article 6 ECHR remain safeguarded even where the interests of the UnitedNations may possibly be affected. The European Community legal or<strong>der</strong> implies that theseare not ranked as subordinate to the legal or<strong>der</strong> of the United Nations. Matters that ariseun<strong>der</strong> UN resolutions can also be reviewed against the human rights that are safeguarded bythe ECHR.The Member States, including the Netherlands, must ensure that this European Communitylegal or<strong>der</strong> – including the human rights arising un<strong>der</strong>, inter alia, Article 6 ECHR – issafeguarded. In any event, the line of reasoning that the ECHR would not apply because itpost-dates the founding of the United Nations is insupportable.<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 95 of 99
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