Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef Writ of summons - Van Diepen Van der Kroef
(…)(d) Make available all appropriate legal, diplomatic and consular means to ensure thatvictims can exercise their rights to remedy for gross violations of international humanrights law or serious violations of international humanitarian law.’A Member State should ensure on the ground of Article VIII, number 13 of the BasicPrinciples that not only individuals but also groups of victims can enforce their rights.The Foundation constitutes a group of victims within the meaning of Article VIIInumber 13 of the Basic Principles.431. The family of Plaintiff and the persons whose interests are promoted by Foundation arevictims of gross breaches of human rights, such as the the right to life and tohumanitarian care. Moreover, the mandate of the UN implied the protection of humanrights. The resolutions adopted by the Security Council gave the order to protect theSafe Area and the civilians who found themselves there. Given that the protection ofhuman life was the object of the resolution, UN resolutions 836 and 844 also conferrights directly on individuals.432. Both the CAVV Report and the Basic Principles lead to the result that Plaintiff andFoundation can in this case enforce their rights, deriving from public international law,before the Dutch Court. As that applies for gross breaches of human rights, so it appliesall the more for the breach of the obligations arising from the Genocide Convention.Plaintiff and Foundation have a claim against the UN and the State of the Netherlandson the ground of public international law as the violated norms of public internationallaw confer rights directly on the individual (see, CAVV Opinion, nos. 3.5.1 and 3.5.2).433. The Basic Principles provide also that victims have a right to compensation if restorationof the situation that existed prior to the damage-causing facts is not possible. Suchcompensation is awarded, inter alia, for physical and mental injury, lost chances,including employment, education and social security benefits. Compensation is alsoawarded for material damage and loss of profit or earnings and for non-material damage(see, Article IX, number 20 of the Basic Principles). In the light of the above the UN and© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com180
the State of the Netherlands must pay Plaintiff and the persons whose interests arepromoted by Foundation compensation on the ground of public international law.434. In connection with the possibility as an individual to derive rights from provisions underinternational conventions Plaintiff and Foundation refer, in addition to the BasicPrinciples addressed above, to Article 93 of the Netherlands Constitution. Article 93Constitution provides:‘Provisions of conventions and of decisions of international law organisations, whosecontent can be universally binding, shall have binding force following publication’This direct applicability of international conventions in the Netherlands legal order is ofimportance where the international conventions also contain universally applicable anddirectly binding provisions. Provisions that are universally applicable and directlybinding are provisions that have binding force on civilians (private persons), includinglegal persons under civil law (see, J.W.A. Fleuren, Tekst & Commentaar, Grondwet(Text & Commentary, Constitution), 2004, Article 93 number 3). Whether aninternational treaty contains a universally applicable and directly binding provision is amatter exclusively for the judgment of the Dutch Court (see, F.M.C. Vlemminx andM.G. Boekhorst, De Grondwet (The Constitution), 2000, Article 93 number 7; J.W.A.Fleuren, op. cit., number 4 with reference to the relevant Parliamentary Documents; P.van Dijk and B.G. Tahzib in S.A. Riesenfeld and F.M. Abbott, ParliamentaryParticipation in the Making and Operation of Treaties, 1994, page 113).435. The so-called self-executing character of such provisions in international conventionsmust be assessed by the Dutch Court as a matter of fact. In the present case the GenocideConvention, the Geneva Conventions and the EECHR have been incorporated into theNetherlands legal order as international conventions by Article 93 NetherlandsConstitution. The Genocide Convention and the Geneva Conventions were createdprecisely to protect the civilian population, and thereby individual civilians, fromwrongdoing. The same applies for Articles 2 paragraph 1 of the EECHR and Article 6paragraph 1 of the ICCPR, that primarily go to the protection of the individual.© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com181
- Page 129 and 130: the United Nations, Advisory opinio
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the State <strong>of</strong> the Netherlands must pay Plaintiff and the persons whose interests arepromoted by Foundation compensation on the ground <strong>of</strong> public international law.434. In connection with the possibility as an individual to <strong>der</strong>ive rights from provisions un<strong>der</strong>international conventions Plaintiff and Foundation refer, in addition to the BasicPrinciples addressed above, to Article 93 <strong>of</strong> the Netherlands Constitution. Article 93Constitution provides:‘Provisions <strong>of</strong> conventions and <strong>of</strong> decisions <strong>of</strong> international law organisations, whosecontent can be universally binding, shall have binding force following publication’This direct applicability <strong>of</strong> international conventions in the Netherlands legal or<strong>der</strong> is <strong>of</strong>importance where the international conventions also contain universally applicable anddirectly binding provisions. Provisions that are universally applicable and directlybinding are provisions that have binding force on civilians (private persons), includinglegal persons un<strong>der</strong> civil law (see, J.W.A. Fleuren, Tekst & Commentaar, Grondwet(Text & Commentary, Constitution), 2004, Article 93 number 3). Whether aninternational treaty contains a universally applicable and directly binding provision is amatter exclusively for the judgment <strong>of</strong> the Dutch Court (see, F.M.C. Vlemminx andM.G. Boekhorst, De Grondwet (The Constitution), 2000, Article 93 number 7; J.W.A.Fleuren, op. cit., number 4 with reference to the relevant Parliamentary Documents; P.van Dijk and B.G. Tahzib in S.A. Riesenfeld and F.M. Abbott, ParliamentaryParticipation in the Making and Operation <strong>of</strong> Treaties, 1994, page 113).435. The so-called self-executing character <strong>of</strong> such provisions in international conventionsmust be assessed by the Dutch Court as a matter <strong>of</strong> fact. In the present case the GenocideConvention, the Geneva Conventions and the EECHR have been incorporated into theNetherlands legal or<strong>der</strong> as international conventions by Article 93 NetherlandsConstitution. The Genocide Convention and the Geneva Conventions were createdprecisely to protect the civilian population, and thereby individual civilians, fromwrongdoing. The same applies for Articles 2 paragraph 1 <strong>of</strong> the EECHR and Article 6paragraph 1 <strong>of</strong> the ICCPR, that primarily go to the protection <strong>of</strong> the individual.© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com181
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