Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
(3.) An agreement was concluded between the UN and the State of the Netherlands forthe dispatch of troops for the protection of the population in the Safe Area.That agreement establishes the right in Plaintiff and the persons whose interests arepromoted by Foundation to claim performance of the obligation to provideprotection (on the ground of Article 6:253 Burgerlijk Wetboek (Civil Code), bothfrom the UN and from the State of the Netherlands.303. Plaintiff will return to the consensus thus created and repeatedly confirmed. Plaintiffnotes for the present that the UN and the State of the Netherlands did not fulfill theirmost important obligation, namely, the protection of Plaintiff and her family. The UNand the State of the Netherlands did not – when it mattered – make (sufficient) efforts tomake the promised protection a reality.304. As it was the State of the Netherlands that supplied the troops who should haveprotected the population, it was the Netherlands that provided the most characteristicperformance and consequently Dutch law is applicable.II.3.b. Law applicable to the unlawful conduct305. The Conflict of Laws concerning Unlawful Acts Act (Wet conflictenrecht onrechtmatigedaad (WCOD)) entered into force in 2001. This statute contains no transitionalprovisions and Article 4 General Provisions (Kingdom Legislation) Act (Wet AlgemeneBepalin gen (Wet AB)) provides that statutes do not have retroactive force. However, theWCOD comprises a codification of the law then in force, and thus common groundshould be sought with the WCOD (see note to Hoge Raad (Dutch Supreme Court) 12November 2005, NJ 2005, 552). The application of the lex locus delicti encounters theproblem of the multiple locus, given that the soldiers in Srebrenica were under thecommand of the government in The Netherlands, while the officers were encamped inBosnia. The problematic also arises of Handlungsort and Erfolgsort (Article 3 paragraph1 and paragraph 2, respectively, WCOD; the territory where the acting in an unlawfulmanner has occurred, and the territory where the harmful consequences of such unlawful© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com132
acting arise, respectively). In addition, there is the issue of unlawful omission (the notoffering of (adequate) protection).306. Plaintiff is of the view that Dutch law is applicable to the acting in an unlawful manner.The troops sent to Bosnia were not equipped, not trained and not psychologicallyprepared for the assumed task (see page 2155 of the NIOD Report). The State of theNetherlands is consequently liable. The State of the Netherlands assumed responsibilityfor the carrying out of the protection and the implementation of that undertaking wasdone in an unlawful manner towards Plaintiff. Further, the State of the Netherlandsmade every effort at the time of the attack on the Safe Area to halt, or have halted, theair support that was essential. The UN co-operated in this and wrongfully did not presshome the air support. The fact that the acting in an unlawful manner took place in theNetherlands makes Dutch law applicable by virtue of the rule derived from theHandlungsort (Article 3 paragraph 1 WCOD).307. Arguments can be advanced on the ground of which Bosnian law could be applicable.One could here think of the rule derived from the Erfolgsort (Article 3 paragraph 2WCOD). To the extent that Bosnian law might be applicable, Plaintiff argues for theapplication of Article 5 WCOD. The possibility exists, if there is another legalrelationship, to apply the accessory connecting factor to that other legal relationship.This other legal relationship is constituted in this case by the obligations on the part ofthe UN and the State of the Netherlands resulting from the agreement with Plaintiff andher family. As was seen, Dutch law is applicable to that legal relationship, so that anaccessory connecting factor with Dutch law is indicated as regards the acting in anunlawful manner.308. If Dutch law is not applicable, Plaintiff invites Defendants to make a choice of law infavour of Dutch law. The parties are competent to make such a choice of law (HogeRaad 19 November 1993, NJ 1994, 622 (legal consideration 4.2), the caselaw beingcodified in Article 6 WCOD). Application of Dutch law is – given the Dutch forum –also the most appropriate and beneficial in terms of cost and efficiency.© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com133
- 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 and 128: IILegal characterisationIntroductio
- Page 129 and 130: the United Nations, Advisory opinio
- Page 131: 302. The UN and the State of the Ne
- 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
- Page 179 and 180: ‘(c) Provide those who claim to b
- Page 181 and 182: the State of the Netherlands must p
acting arise, respectively). In addition, there is the issue <strong>of</strong> unlawful omission (the not<strong>of</strong>fering <strong>of</strong> (adequate) protection).306. Plaintiff is <strong>of</strong> the view that Dutch law is applicable to the acting in an unlawful manner.The troops sent to Bosnia were not equipped, not trained and not psychologicallyprepared for the assumed task (see page 2155 <strong>of</strong> the NIOD Report). The State <strong>of</strong> theNetherlands is consequently liable. The State <strong>of</strong> the Netherlands assumed responsibilityfor the carrying out <strong>of</strong> the protection and the implementation <strong>of</strong> that un<strong>der</strong>taking wasdone in an unlawful manner towards Plaintiff. Further, the State <strong>of</strong> the Netherlandsmade every effort at the time <strong>of</strong> the attack on the Safe Area to halt, or have halted, theair support that was essential. The UN co-operated in this and wrongfully did not presshome the air support. The fact that the acting in an unlawful manner took place in theNetherlands makes Dutch law applicable by virtue <strong>of</strong> the rule <strong>der</strong>ived from theHandlungsort (Article 3 paragraph 1 WCOD).307. Arguments can be advanced on the ground <strong>of</strong> which Bosnian law could be applicable.One could here think <strong>of</strong> the rule <strong>der</strong>ived from the Erfolgsort (Article 3 paragraph 2WCOD). To the extent that Bosnian law might be applicable, Plaintiff argues for theapplication <strong>of</strong> Article 5 WCOD. The possibility exists, if there is another legalrelationship, to apply the accessory connecting factor to that other legal relationship.This other legal relationship is constituted in this case by the obligations on the part <strong>of</strong>the UN and the State <strong>of</strong> the Netherlands resulting from the agreement with Plaintiff andher family. As was seen, Dutch law is applicable to that legal relationship, so that anaccessory connecting factor with Dutch law is indicated as regards the acting in anunlawful manner.308. If Dutch law is not applicable, Plaintiff invites Defendants to make a choice <strong>of</strong> law infavour <strong>of</strong> Dutch law. The parties are competent to make such a choice <strong>of</strong> law (HogeRaad 19 November 1993, NJ 1994, 622 (legal consi<strong>der</strong>ation 4.2), the caselaw beingcodified in Article 6 WCOD). Application <strong>of</strong> Dutch law is – given the Dutch forum –also the most appropriate and beneficial in terms <strong>of</strong> cost and efficiency.© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com133
Change language