Writ of summons - Van Diepen Van der Kroef

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‘In the determination of his civil rights and obligations or of any criminal chargeagainst him, everyone is entitled to a fair and public hearing within a reasonable timeby an independent and impartial tribunal established by law.’It is generally acknowledged that the guarantee of a “fair trial” in Article 6 paragraph 1EECHR also implies the right of access to the court. This has been the enduring caselawof the European Court of Human Rights since Golder v. United Kingdom (Applicationno. 4451/70). In the Case Waite and Kennedy v. Germany (Application no. 26083/94)the European Court of Human Rights once again confirmed this with the followingjudgment (legal consideration 67):‘It should be recalled that the Convention is intended to guarantee not theoretical orillusory rights, but rights that are practical and effective. This is particularly true forthe right of access to the courts in view of the prominent place held in a democraticsociety by the right to a fair trial.’Moreover, the European Court of Human Rights in the Case Waite and Kennedy v.Germany permitted the claim of immunity invoked by the European Space Agency(ESA) to prevail only because alternative legal remedies were available. That impliesthat in the present case immunity cannot be accorded as Plaintiff has no alternative legalremedy available against the UN.Article 105 UN Charter is consequently irreconcilable with the above basic assumptionsor provisions because a claim by the UN to immunity would lead in the present case toPlaintiff being afforded no access to an independent court.457. The UN has itself realized to a certain degree the problematic regarding an alternativelegal remedy. That problematic is the reason why Section 29 of the Conventionprovides:© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com190
‘The United Nations shall make provisions for appropriate modes of settlement of:(a) disputes arising out of contracts or other disputes of a private law character towhich the United Nations is a party;’Despite the fact that this provision originated in 1946, the UN has still at present – morethan sixty years later – never established an agency for dispute settlement where Plaintiffcould institute her claim. Apart from that, Section 29 of the Convention contemplateddisputes arising under the civil law and expressly not any claim under publicinternational law.458. Plaintiff notes that the State of the Netherlands is a Contracting State to the EECHR andto the ICCPR, and has ratified these conventions. Consequently, the Dutch Court canaccord no immunity to the UN because to do so would violate the fundamental right ofPlaintiff and the persons whose interests are promoted by Foundation.459. A. Reinisch also confirms that Belgium, as a party to the EECHR, should have offeredManderlier access to the Tribunal through the national court system and should not haveupheld the claim to immunity (A. Reinisch, International Organizations before NationalCourts, 2000, page 289).460. K. Wellens has expressed that same opinion in his publication, ‘Fragmentation ofinternational law and establishing an accountability regime for internationalorganisations: The role of the judiciary in closing the gap’ (see, Michigan Journal ofInternational Law, 11 May 2004). Wellens states, with reference also to Ch. Dominicé,that the right of access to the court should weigh more heavily than the interest ofimmunity (K. Wellens, op. cit., page 18):‘(…) access should prevail over immunity if no legal remedy is available.’461. The Advisory Commission on Issues arising under Public International Law (CAVV)referred to above, which advises the Netherlands Government on issues of internationallaw, shares the above view that, in the absence of any other legal remedy, the right of© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com191
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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
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Brantz (Tuzla)↕Karremans, Franken
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‘The first line of resistance to
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180. Plaintiff Mujić states (see E
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The flight to the UN compound189. D
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193. It is incomprehensible that Du
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soldiers let that be known when the
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Other points concerned forced evict
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‘On 12 and 13 July 1995, upon the
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statements put in the proceedings a
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lying on a wagon. The Dutchbat sold
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228. Only one Dutchbat officer was
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‘UNMO source about 1,000 men take
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night-time. I did not dare to leave
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239. Plaintiff Hotič states (see E
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People had no food or water, nor we
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During all of this the Dutch soldie
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group and they were raped. I was ve
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four or five Dutchbat soldiers were
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shocked by what he had evidently se
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follows:‘An alternative position
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‘We were deported to Tuzla later
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I arrived at the barrier shortly th
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encountered objections from the Dut
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277. Plaintiff Hasanović was born
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Subašić282. Plaintiff Subašić w
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IILegal characterisationIntroductio
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the United Nations, Advisory opinio
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302. The UN and the State of the Ne
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acting arise, respectively). In add
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of the Safe Area and was not immedi
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weapons of the VRS, or at least to
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Page 149 and 150: ‘Article 3 - General Principles1.
Page 151 and 152: control of UNPROFOR from the moment
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Page 155 and 156: ecame entwined. In his view, it was
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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
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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
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Page 179 and 180: ‘(c) Provide those who claim to b
Page 181 and 182: the State of the Netherlands must p
Page 183 and 184: of the Netherlands. The UN and the
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Page 187 and 188: UN but also to the purposes that ar
Page 189: possible immunity on the part of th
Page 193 and 194: ‘In spite of this provision of th
Page 195: THEREFORE:If it pleases the Court t
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Writ of summons - Van Diepen Van der Kroef

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