Writ of summons - Van Diepen Van der Kroef

Convention promulgated on the basis of the UN Charter cannot ignore what is laid downin the UN Charter.451. In addition, the Case of Manderlier against the UN is of an order that is not comparablewith the present case. Firstly, the Manderlier Case did not involve genocide but thedestruction of property. Secondly, the Decision in the Manderlier Case was given in anera when the UN was not then so extensively involved with international conflicts as itis at present. At that time it was unimaginable that genocide could be committed underthe eyes of UN troops. In this case, therefore, the UN is not entitled to immunity. Thefollowing serves as explanation.452. The Second World War led to the realisation that common action was necessary ifstability and world peace were to be achieved. The idea of a global peace organisationbecame an objective of the Allied States (see, Grewe/Khan, in B. Simma, The Charter ofthe United Nations, a Commentary, Volume 1, page 1). To that end it was the intentionto establish an international organisation which would act on the basis of agreementbetween states, in order to guarantee broad support within the international community.It is in this manner also that the UN resolutions that are of significance in this presentcase were adopted. It is here also significant that such an organisation does not runcounter to the principles of a democratic state, a state governed by the rule of law.453. It is characteristic of a democratic state governed by the rule of law that there is aseparation of powers between the legislative, the executive and the judicial powers. In asystem where that separation operates, the powers operate to control each other, in orderto prevent a dictatorship arising. The UN exercises the legislative powers through itsresolutions. Then those resolutions are enforced by UN troops. If the UN were then notto be controlled by a court under any circumstances the UN would resemble a dictatorialorganisation. It is inconceivable that the states that established the UN and the statesthat subsequently joined it intended to establish such an organisation for world peace. Itis also acknowledged that the UN Charter must be interpreted on the basis of theprinciples of good faith (see, G. Ress, in B. Simma, a Commentary, The Interpretation ofthe Charter of the United Nations, Volume 1, page 19). Such interpretation entails that a© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com188