Writ of summons - Van Diepen Van der Kroef

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access to the court is more important than the claim to immunity. Thus, the CAVVwrites in Article 4.5.2 of its Report that the national court:‘(…) should proceed to a prima facie investigation in the light of international legalnorms of the availibility of adequate internal legal remedies that are available withinan international organisation to the aggrieved party. In the event of a negative result itis desirable that national courts do not accord immunity and proceed to settlement ofthe dispute at hand.’462. It is meanwhile accepted that the immunity of international organisations, like the UN, is(no longer) self-evident (see, A. Reinisch, in R. Hofmann et al., Die Rechtskontrolle vonOrganen der Staatengemeinschaft, 2007, page 43). There are increasing numbers ofnational courts that do not recognise the immunity of these organisations, in order toguarantee an effective protection of legal rights.463. In the proceedings between Manderlier and the UN, Manderlier invoked, inter alia,Article 6 EECHR and Article 10 UDHR. It was held in that dispute that the UDHR didnot have the force of a statute (see, 45 ILR, page 451). The Tribunal in Brussel heldfurther that only fourteen countries were Contracting Parties of the EECHR and that theEECHR could not be enforced against the UN (see, 45 ILR, page 452). To the extentthat the numbers argument in 1966 was valid, that is at present certainly not the casegiven that now 46 countries have acceded to the EECHR. The second argument, that theEECHR does not apply to the UN, is also incorrect. The EECHR confers on civilians adirect right of access to the court, which means that the court before which a claim isbrought must allow access. By so doing it is not imposing the EECHR on the the UN,but rather offering protection to the acknowledged – also by the UN – human right ofaccess to the court.464. In respect of the failure to establish access to the court, the Tribunal in Brussels in theManderlier Case held that (see, 45 ILR, page 451):© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com192
‘In spite of this provision of the Declaration which the U.N. proclaimed on 10December 1948, the Organization has neglected to set up the courts which it was in factalready bound to create by Section 29 of the Convention [on Privileges andImmunities] of 13 February 1946.’One must assume that also the Belgian court, now some 40 years later, would no longeraccept this failure of the UN.465. Finally, Plaintiff recalls that the UN assumed the obligation of ensuring protection of thepopulation. That obligation was repeatedly confirmed by the UN resolutions adopted bythe Security Council and also at a lower level until after the fall of the Safe Area.Moreover, the population was repeatedly informed that it was not the population itself,but the UN troops who would take care of the defence. With that the UN assumed alarge responsibility. The UN did not protect the civilians of the Safe Area and madeinsufficient efforts to do so. The International Court of Justice (ICJ) in its Decision of 26February 2007 in the Case Bosnia-Herzegovina against Serbia and Montenegroestablished that genocide was committed in Srebrenica. The theoretical discretionarycompetence of the UN to invoke immunity cannot apply in the present case becausePlaintiff and the Foundation accuse the UN of being in breach of its obligations underthe Genocide Convention. In the case of such a serious breach of the obligation toprevent genocide, there lies upon the UN precisely a duty not to invoke immunity. Oneof the objectives of the UN is to promote respect for human rights, which is also laiddown in Article 1 paragraph 3 of the UN Charter. Invoking immunity would be contraryto the UN’s own objectives. It seems also not to be in the interest of the credibility of theUN.IV. Tender of evidence466. Plaintiff and the Foundation offer to tender evidence supporting all their propositionswithout thereby assuming any burden of proof, other than that which arises under law,by, inter alia, hearing (examing) the witnesses:- Mrs SabaThe a Fejzić- Mrs Kadira Gabeljić© Van Diepen Van der Kroef Advocaten 2007www.vandiepen.com193
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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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consequence that the VRS could depl
Page 141 and 142: 326. Instead of taking action from
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Page 145 and 146: 23 July 1995 (see H. Praamsma, J. P
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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
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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 and 190: possible immunity on the part of th
Page 191: ‘The United Nations shall make pr
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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