Writ of summons - Van Diepen Van der Kroef

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II.1. Jurisdiction and territorial jurisdiction289. The Dutch court is competent to hear the present claim against the State of theNetherlands by virtue of Article 2 Code of Civil Procedure (Wetboek van BurgerlijkeRechtsvordering; hereafter CCPr.). The principle of law that governs is that in respect ofclaims against the State of the Netherlands, no court is competent other than the Dutchcourt (par in parem non habet iurisdictionem, i.e., the principle that states are equal andstates do not sit in judgment over another state; see, for example, Knut Ipsen,Völkerrecht, C.H. Beck 2004, 5 th ed., page 373).290. The territorial competence of the District Court, The Hague in respect of the claimagainst the State of the Netherlands follows from Article 99 CCPr.291. The Dutch court is competent to hear the claim against the UN by virtue of Article 7paragraph 1 CCPr. The Dutch court has jurisdiction in respect of the State of theNetherlands and there exists such a close connection between the claims againstDefendants, that grounds of expediency justify a combined hearing on this matter.292. The territorial jurisdiction of the District Court, The Hague regarding the claim againstthe UN follows from Article 107 CCPr. Plaintiff and Foundation here repeat that thereexists such a close connection between the claims against the Defendant that reasons ofexpediency justify a combined hearing on this matter.II.2. Legal personality of the UN293. Plaintiff may institute legal proceedings against the UN as the UN possesses legalpersonality (see Article 104 of the UN Charter):‘The organization shall enjoy in the territory of each of its Members such legal capacityas may be necessary for the exercise of its functions and the fulfilment of its purposes.’294. The International Court of Justice at The Hague (ICJ) established many years ago thatthe UN possesses legal personality (Reparations for Injuries Suffered in the Service of© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com128
the United Nations, Advisory opinion, 11 April 1949, ICJ Rep. 1949, page 174). Thelegal personality of the UN is also confirmed in the literature (see M. Zwanenburg,Accountability of Peace Support Operations, 2005, page 66):‘The international legal personality of the UN has subsequently been confirmed onnumerous occasions in law and practice.’295. Caselaw also confirms that the UN possesses legal personality (Tribunal Brussels,Manderlier/UN, 11 May 1966, 45 International Law Reports 446).296. In addition to the fact that the UN poosesses legal personality the UN can be summonedalso on the following ground: Article 104 UN Charter was given more detailed meaningin Article I section 1 of the Convention on the privileges and immunities of the UN of13 February 1946 (hereafter: Convention). According to that Article I section 1 the UNpossesses legal personality, which means that:‘It shall have the capacity: (a) to contract, (b) to acquire and dispose of immovable andmovable property, (c) to institute legal proceedings.’Article I section 1 of the Convention is not exhaustive. According to the literature andcaselaw the UN is competent to appear before the court as Defendant (Seidl-Hohenveldern/Rudolph, in B. Simma, The Charter of the United Nations, ACommentary, second edition, volume II, article 104, number 10).297. It follows from the above that the UN can be summoned to appear before the Dutchcourt.II.3. Applicable law: claims founded on civil law298. The claims of Plaintiff rest in part on civil law. The UN and the State of the Netherlandsare held to be jointly liable for the fall of the Srebrenica Safe Area and the consequencesthereof. The UN and the State of the Netherlands failed to fulfill their agreed obligations(agreed with Plaintiff and her murdered family). Furthermore, the UN and the State of© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com129
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WRIT OF SUMMONSDISTRICT COURT, THE
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IN ORDER:on Wednesday, thetwo thous
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- every request by the inhabitants
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8. The fate of the civilian populat
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IV Tender of evidence 446I Facts5.
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NIOD. This Report is referred to as
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12. The Yugoslav People’s Army (o
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‘Prior to departing, he addressed
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- UN resolution 816 (31 March 1993)
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No. 4:Decides to ensure full respec
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…Should UNPROFOR’s presence pro
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30. To reiterate here, the question
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UN and the State of the Netherlands
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Brigade. In addition, the State of
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43. The choice in favour of deploym
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The government parties replied to t
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population during the training as
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Potocari/Srebrenica. This chain of
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63. As appears from the above, and
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eference to the failure to act of D
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‘I have been directed, today 29 M
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leaders (Milosevic, Karadzic and Ml
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observation post was not carried ou
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attack on the Safe Area on 6 July 1
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single shot being fired and OP-F wa
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immediate and robust reaction Nicol
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know what Dutchbat itself would do
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that the enclave was continuously e
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‘You are to use all means at your
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Commander therefore gave the order
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he proposed to have Karremens arres
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Brantz, to establish that there was
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officers and the State of the Nethe
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had any purpose to go ahead with th
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Voorhoeve (see also number 307 of t
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y VRS soldiers in Dutch uniform and
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population: medical matters (Dutchb
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OP-N161. The capture of OP-N is des
Page 77 and 78: Brantz (Tuzla)↕Karremans, Franken
Page 79 and 80: ‘The first line of resistance to
Page 81 and 82: 180. Plaintiff Mujić states (see E
Page 83 and 84: The flight to the UN compound189. D
Page 85 and 86: 193. It is incomprehensible that Du
Page 87 and 88: soldiers let that be known when the
Page 89 and 90: Other points concerned forced evict
Page 91 and 92: ‘On 12 and 13 July 1995, upon the
Page 93 and 94: statements put in the proceedings a
Page 95 and 96: lying on a wagon. The Dutchbat sold
Page 97 and 98: 228. Only one Dutchbat officer was
Page 99 and 100: ‘UNMO source about 1,000 men take
Page 101 and 102: night-time. I did not dare to leave
Page 103 and 104: 239. Plaintiff Hotič states (see E
Page 105 and 106: People had no food or water, nor we
Page 107 and 108: During all of this the Dutch soldie
Page 109 and 110: group and they were raped. I was ve
Page 111 and 112: four or five Dutchbat soldiers were
Page 113 and 114: shocked by what he had evidently se
Page 115 and 116: follows:‘An alternative position
Page 117 and 118: ‘We were deported to Tuzla later
Page 119 and 120: I arrived at the barrier shortly th
Page 121 and 122: encountered objections from the Dut
Page 123 and 124: 277. Plaintiff Hasanović was born
Page 125 and 126: Subašić282. Plaintiff Subašić w
Page 127: IILegal characterisationIntroductio
Page 131 and 132: 302. The UN and the State of the Ne
Page 133 and 134: acting arise, respectively). In add
Page 135 and 136: of the Safe Area and was not immedi
Page 137 and 138: weapons of the VRS, or at least to
Page 139 and 140: consequence that the VRS could depl
Page 141 and 142: 326. Instead of taking action from
Page 143 and 144: ‘(…) I had spent days lying on
Page 145 and 146: 23 July 1995 (see H. Praamsma, J. P
Page 147 and 148: (a) (…) encouraging the progressi
Page 149 and 150: ‘Article 3 - General Principles1.
Page 151 and 152: control of UNPROFOR from the moment
Page 153 and 154: ‘The presumption can be rebutted
Page 155 and 156: ecame entwined. In his view, it was
Page 157 and 158: Conventions obliges the Contracting
Page 159 and 160: Article 8 of the ILC Articles for I
Page 161 and 162: - secondly, it was evident that the
Page 163 and 164: international customary humanitaria
Page 165 and 166: civilians, deportation and murder.
Page 167 and 168: ‘(…) confirm that Article I doe
Page 169 and 170: also be assessed by legal criteria,
Page 171 and 172: ‘(14) UNPROFOR had participated a
Page 173 and 174: under customary law. A duty on stat
Page 175 and 176: and the State of the Netherlands ac
Page 177 and 178: for International Organisations com
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‘(c) Provide those who claim to b
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the State of the Netherlands must p
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of the Netherlands. The UN and the
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‘militairement avait mal conduit.
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UN but also to the purposes that ar
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possible immunity on the part of th
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‘The United Nations shall make pr
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‘In spite of this provision of th
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THEREFORE:If it pleases the Court t
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