© Van Diepen Van der Kroef Advocaten
© Van Diepen Van der Kroef Advocaten © Van Diepen Van der Kroef Advocaten
209. To conclude, the Association et al. points out that in the above case of Al-Barakaat theState of the Netherlands intervened on the side of the European Council. The State of theNetherlands then adopted the same position as in the present proceedings, namely, thatwhatever the United Nations does within the framework of the resolutions of the SecurityCouncil under Chapter VII of the UN Charter falls outside the control of the EuropeanCommunity judicature, even in the case of fundamental rights, and that the United Nationsenjoys immunity from jurisdiction to this extent (see legal consideration 262). That positionis shown, in the light of the judgment cited, to be erroneous.Ground of appeal 15210. The District Court has erroneously considered under legal consideration 5.25 that:‘Reviewing against Article 14 ICCPR does not lead to a different outcome.’Explanation of ground of appeal 15211. It follows from the grounds of appeal set out above and explanations thereto that a reviewof Article 14 ICCPR should have had the result that the District Court has jurisdiction to hearthe claim of the Association et al. against the United Nations.212. The District Court has further failed to understand that – otherwise than in the case of theECHR – virtually every country of the United Nations has acceded to the ICCPR. Thereasoning of the District Court under legal consideration 5.24 that no significance attachesto certain caselaw given the fact that the judgments of the European Court of Human Rightsrelated to a European international organisation with merely a restricted Europeanmembership cannot apply to the ICCPR. Without further grounds, which are absent, it isincomprehensible that the District Court concluded that a review of Article 14 ICCPR wouldnot lead to a different result.After all, virtually every country of the United Nations has through the ICCPR safeguardedthe right of access to the court, a principle that is indeed also expressed in section 29 of theConvention.© Van Diepen Van der Kroef Advocaten page 96 of 99
Ground of appeal 16213. The District Court has erroneously considered under legal consideration 5.26 that:‘The Court’s enquiry into a possible conflict between the absolute immunity of the UN thatis valid in international law and other norms of international law does not lead to anexception to this immunity.’Explanation of ground of appeal 16214. Given the grounds of appeal set out above and explanations thereto it should be concludedthat legal consideration 5.26 is erroneous. For the sake of brevity the Association et al.refers to the grounds of appeal set out above with explanations.Ground of appeal 17215. The District Court has erroneously considered under legal consideration 5.27 that:‘On the basis of the above, the State’s interim motion to have the Court declare it has nojurisdiction in the case of the Association et al. against the UN should be allowed.’The District Court has also erroneously considered under legal consideration 5.28 that:‘In view of this outcome the State’s second interim motion to intervene as a third party or,alternatively, to join the defendant in the action of the Association et al. against the UNdoes not need to be considered.’216. The District Court has further erroneously considered under legal consideration 5.29 that:‘The Association et al. should be ordered to pay the costs of this incident as the partyagainst whom the judgment is given.’© Van Diepen Van der Kroef Advocaten page 97 of 99
- 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
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- 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 98 and 99: Explanation of ground of appeal 172
209. To conclude, the Association et al. points out that in the above case of Al-Barakaat theState of the Netherlands intervened on the side of the European Council. The State of theNetherlands then adopted the same position as in the present proceedings, namely, thatwhatever the United Nations does within the framework of the resolutions of the SecurityCouncil un<strong>der</strong> Chapter VII of the UN Charter falls outside the control of the EuropeanCommunity judicature, even in the case of fundamental rights, and that the United Nationsenjoys immunity from jurisdiction to this extent (see legal consi<strong>der</strong>ation 262). That positionis shown, in the light of the judgment cited, to be erroneous.Ground of appeal 15210. The District Court has erroneously consi<strong>der</strong>ed un<strong>der</strong> legal consi<strong>der</strong>ation 5.25 that:‘Reviewing against Article 14 ICCPR does not lead to a different outcome.’Explanation of ground of appeal 15211. It follows from the grounds of appeal set out above and explanations thereto that a reviewof Article 14 ICCPR should have had the result that the District Court has jurisdiction to hearthe claim of the Association et al. against the United Nations.212. The District Court has further failed to un<strong>der</strong>stand that – otherwise than in the case of theECHR – virtually every country of the United Nations has acceded to the ICCPR. Thereasoning of the District Court un<strong>der</strong> legal consi<strong>der</strong>ation 5.24 that no significance attachesto certain caselaw given the fact that the judgments of the European Court of Human Rightsrelated to a European international organisation with merely a restricted Europeanmembership cannot apply to the ICCPR. Without further grounds, which are absent, it isincomprehensible that the District Court concluded that a review of Article 14 ICCPR wouldnot lead to a different result.After all, virtually every country of the United Nations has through the ICCPR safeguardedthe right of access to the court, a principle that is indeed also expressed in section 29 of theConvention.<strong>©</strong> <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> <strong>Advocaten</strong> page 96 of 99
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