Writ of summons - Van Diepen Van der Kroef
Writ of summons - Van Diepen Van der Kroef 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
possible immunity on the part of the UN cannot be unlimited. It is for that matter alsonot acceptable that a person or an organisation accords itself an unlimited immunity andfor an independent court to accept that. Immunity can be accorded only to others. It iscontrary to the principles of a state governed by the rule of law for persons or legalpersons personally to determine that they are immune.454. A. Reinisch correctly points out that international organisations are also subject to theprinciples of “good governance” (see, A. Reinisch, in R. Hofmann et al., DieRechtskontrolle von Organen der Staatengemeinschaft, 2007, page 84). TheCommission of the International Law Association regarding “Accountability ofInternational Organisations” also came to the following conclusion(see, A. Reinisch, inR. Hofmann et al., Die Rechtskontrolle von Organen der Staatengemeinschaft, 2007,page 84, footnote 223):‘As a general principle of law and as a basic international human rights standard, theright to a remedy also applies to IO-s in their dealings with states and non-stateparties. Remedies include, as appropriate, both legal and non-legal remedies.’455. In addition, the UN serves to guarantee the fundamental rights of civilians. Afundamental right is the right of access to an independent court. That right is confirmedin Article 14 of the International Covenant on Civil and Political Rights (ICCPR) andArticle 6 of the European Convention for the Protection of Human Rights andFundamental Freedoms (EECHR).456. Article 14 paragraph 1 ICCPR states:‘All persons shall be equal before the courts and tribunals. In the determination of anycriminal charge against him, or of his rights and obligations in a suit at law, everyoneshall be entitled to a fair and public hearing by a competent, independent and impartialtribunal established by law (…). ’And Article 6 paragraph 1 EECHR states:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com189
- Page 137 and 138: weapons of the VRS, or at least to
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possible immunity on the part <strong>of</strong> the UN cannot be unlimited. It is for that matter alsonot acceptable that a person or an organisation accords itself an unlimited immunity andfor an independent court to accept that. Immunity can be accorded only to others. It iscontrary to the principles <strong>of</strong> a state governed by the rule <strong>of</strong> law for persons or legalpersons personally to determine that they are immune.454. A. Reinisch correctly points out that international organisations are also subject to theprinciples <strong>of</strong> “good governance” (see, A. Reinisch, in R. H<strong>of</strong>mann et al., DieRechtskontrolle von Organen <strong>der</strong> Staatengemeinschaft, 2007, page 84). TheCommission <strong>of</strong> the International Law Association regarding “Accountability <strong>of</strong>International Organisations” also came to the following conclusion(see, A. Reinisch, inR. H<strong>of</strong>mann et al., Die Rechtskontrolle von Organen <strong>der</strong> Staatengemeinschaft, 2007,page 84, footnote 223):‘As a general principle <strong>of</strong> law and as a basic international human rights standard, theright to a remedy also applies to IO-s in their dealings with states and non-stateparties. Remedies include, as appropriate, both legal and non-legal remedies.’455. In addition, the UN serves to guarantee the fundamental rights <strong>of</strong> civilians. Afundamental right is the right <strong>of</strong> access to an independent court. That right is confirmedin Article 14 <strong>of</strong> the International Covenant on Civil and Political Rights (ICCPR) andArticle 6 <strong>of</strong> the European Convention for the Protection <strong>of</strong> Human Rights andFundamental Freedoms (EECHR).456. Article 14 paragraph 1 ICCPR states:‘All persons shall be equal before the courts and tribunals. In the determination <strong>of</strong> anycriminal charge against him, or <strong>of</strong> his rights and obligations in a suit at law, everyoneshall be entitled to a fair and public hearing by a competent, independent and impartialtribunal established by law (…). ’And Article 6 paragraph 1 EECHR states:© <strong>Van</strong> <strong>Diepen</strong> <strong>Van</strong> <strong>der</strong> <strong>Kroef</strong> Advocaten 2007www.vandiepen.com189
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