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Explanation of ground of appeal 17217. Given the grounds of appeal set out above and explanations thereto the District Courtshould have dismissed the interim motion to have the Court declare that it had nojurisdiction in the case of the Association et al. against the UN. That entails that the DistrictCourt should have considered the motions of the State of the Netherlands to intervene,alternatively, to join in the action. That consideration should still be effected. TheAssociation et al. persists in its defence against those interim motions and refers to what ithas put forward in its statement of defence in the incident and pleadings at first instance.The interim motions of the State of the Netherlands to intervene, alternatively, to join haveto be dismissed, too.Ground of appeal 18218. The decision of the District Court under legal consideration 6 is incorrect.Explanation of ground of appeal 18219. Given the grounds of appeal set out above and explanations thereto the District Courtshould have dismissed the interim motions of the State of the Netherlands and hold that ithad jurisdiction to hear the claims of the Association et al. against the United Nations. Itfollows also from the above that the District Court incorrectly ordered the Association et al.to pay costs and that the District Court erroneously failed to decide on the motion onintervention, alternatively, joinder.220. To the above should once again be added that the United Nations did not appear in its ownbehalf.Only the State of the Netherlands asserted that it had sufficient interest in pleading theimmunity of the United Nations on the ground of the international obligation that the Stateof the Netherlands had in that respect. It was shown above that there are numerous other,more weighty obligations under international and human rights law on the State of theNetherlands that were disregarded with the invocation of immunity. It should be consideredthat what is at issue here is not a coincidental disregard of the obligations under© Van Diepen Van der Kroef Advocaten page 98 of 99
international and human rights law, including also the obligation of the State of theNetherlands within the framework of its membership of the European Union. The actionbrought by the State of the Netherlands must be traced back to its actual interest. After all,if immunity is accorded and the Netherlands Court declares itself as without jurisdiction theState of the Netherlands can restrict its defence and keep referring to the United Nations.In conclusion:If it pleases the Court to give judgment having immediate effect:1. to set aside the judgment against which appeal was lodged;2. still to determine that the District Court The Hague has jurisdiction to hear the claims thatthe Association et al. instituted by service of writ of summons of 4 June 2007 against theUnited Nations;3. to direct the State of the Netherlands to reimburse the appellants for all that the Associationet al. might have paid to the State of the Netherlands in implementation of the contestedjudgment plus the statutory interest from the day of payment to the day of repayment;4. to condemn the State of the Netherlands in the costs of both courts plus subsequent costs tobe determined by the Court of Appeal all to be satisfied within fourteen days of official datingof the judgment and – should satisfaction of the (subsequent) costs not be effected within thestated period - plus the statutory interest on such subsequent costs from the stated period forsatisfaction.M.R. GerritsenDr. A. HagedornJ. StaabS.A. van der Sluijs© Van Diepen Van der Kroef Advocaten page 99 of 99
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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
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90. The ICJ gave an Advisory Opinio
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of functional necessity for immunit
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100. Even where the District Court
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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
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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 94 and 95: would occupy in the hierarchy of no
Page 96 and 97: 209. To conclude, the Association e
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