srebrenica genocide survivors v the state of netherlands, the statement of appeal

8/8/2019 Srebrenica Genocide Survivors v the State of Netherlands, The Statement of Appeal

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Case number : 200.022.151/01

Cause list date : 7 April 2009

STATEMENT OF APPEAL

Concerning:

1. the Association Mothers of Srebrenica, registered office in Amsterdam, the Netherlands;

2. Mrs Sabaheta Fejzi!, resident in Vogo!"a (Municipality of Sarajevo), Bosnia-Herzegovina;

3. Mrs Kadira Gabelji!, resident in Vogo!"a (Municipality of Sarajevo), Bosnia-Herzegovina;

4. Mrs Ramiza Gurdi!, resident in Sarajevo, Ilija!, Bosnia-Herzegovina;

5. Mrs Mila Hasanovi!, resident in Sarajevo, Bosnia-Herzegovina;

6. Mrs Kada Hoti!, resident in Vogo!"a (Municipality of Sarajevo), Bosnia-Herzegovina;

7. Mrs "uhreta Muji!, resident in Sarajevo, Bosnia-Herzegovina;

8. Plaintiff No. 8;

9. Mrs Zumra "ehomerovi!, resident in Vogo!"a (Municipality of Sarajevo), Bosnia-

Herzegovina;

10. Mrs Munira Suba# i!, resident in Vogo!"a (Municipality of Sarajevo), Bosnia-Herzegovina;

11. Plaintiff No. 11;

Appellants

Attorneys: M.R. Gerritsen

Dr. A. Hagedorn

J. Staab

S.A. van der Sluijs




Against:

1. The State of the Netherlands (Ministry of General Affairs), with its seat at

The Hague

Respondent

Attorney: G.J.H. Houtzagers

2. the organisation with legal personality The United Nations, having its seat in New York City

(NY 10017), New York, United States of America

Respondent

Not entering an appearance and leave to proceed in default of appearance having been

granted




assertions and allegations made at first instance, which assertions should be deemed to be

here expressly repeated and inserted.

6. The District Court gave judgment on 10 July 2008. In that judgment the Court – in summary –

declared itself as being without jurisdiction to hear the claims brought against the United

Nations. The Association et al. cannot agree with that judgment and will advance against it

the grounds of appeal set out below. In summary, the grounds of appeal are that in its

judgment of 10 July 2008 the District Court incorrectly reproduced the claims of the

Association et al., incorrectly reproduced the argument of the Association et al. and erred

at law regarding a number of several legal issues. Furthermore, the Court failed on a

number of points to give any, alternatively sufficient, grounds for its decision and the Court

has, finally, made an incorrect decison that ought to be set aside in this appeal.

7. The judgment of the District Court brings to a conclusion that part of the dispute that

relates to the claim instituted against the United Nations. The judgment must be

characterised in that context as a final judgment, against which an appeal may be brought

immediately. The main proceedings at first instance are suspended by unanimous decision of

the parties appearing and referred to the suspended cause list until final decision is given on

the jurisdiction of the Court to hear the claims brought against the United Nations.

8. The Association et al. will submit the complete case file on the occasion of the submission

for judgment or argument. In respect of the proceedings at first instance that case file

comprises:

- the writ of summons dated 4 June 2007, with accompanying documents relating to the

service on the United Nations;

- a letter from the State of the Netherlands to the Court, dated 17 September 2007, with as

attachment the letter from the United Nations to the Permanent Representative of the

Netherlands to the United Nations, dated 17 August 2007;

- a letter from the Association et al. to the Court, dated 20 September 2007;

- the official Advisory Opinion of the Public Prosecutions Department under Article 44 CCPr,

dated 7 November 2007;

- the leave to proceed in default of appearance given against the United Nations, dated 7

November 2007;




- the motion by the State of the Netherlands in interim proceedings, dated 12 December

2007;

- the statement of defence presented by the Association et al., dated 6 February 2008;

- memorandum of oral pleadings of the attorneys appearing for the State of the

Netherlands, dated 18 June 2008;

- verbal explanation by the Public Prosecutions Department, dated 18 June 2008;

- memorandum of oral pleadings of the attorneys appearing for the Association et al., dated

18 June 2008;

- contested judgment, dated 10 July 2008;

9. By filing writs of summons dated 7 October 2008 the Association et al. have appealed in due

time from the judgment of 10 July 2008. Furthermore, the notice of appeal was sent by

courier to the United Nations. Service on the United Nations has been confirmed to the

Association et al. The record of service and the sending by courier of the (translated into

English version of) the judgment of the District Court of 10 July 2008 constitutes moreover

presentation to the United Nations for inspection.

Grounds of appeal

10. The grounds of appeal set out below are lodged against the judgment. The Association et al.

will in setting out the grounds of appeal maintain as far as possible the order applied by the

District Court in the contested judgment.

Ground of appeal 1

11. The District Court incorrectly reproduced the claim of the Association et al. under legal

consideration 2.1 under point (5) as follows:

‘orders the UN and the State, jointly and severally, to pay to Fejzi! et al. an advance in the

amount of " 10,000 each on the compensation referred to under (4).’

Explanation

12. The writ of summons dated 4 June 2007 states on page 203 under point (5) of the petition:




‘to hold the United Nations and the State of the Netherlands jointly and severally liable to

pay Plaintiff under 1 through 10 an advance of EUR 25,000 per person of the compensation

to be awarded, as claimed under point 4 of the petition;’

13. Contrary to what the District Court thought, it was not an advance of EUR 10,000 on the

compensation claimed but rather an advance of EUR 25,000. Even though the determination

by the District Court is not a determinative factor in the grounds for or the decision on

jurisdiction, the Association et al. self-evidently has an interest in not being bound by this

incorrect determination by the District Court.

Ground of appeal 2

14. The District Court has incorrectly summarised the defence of the Association et al. under

legal consideration 3.4 as follows:

‘(1) Only the UN itself can, if it appeared, invoke its possible immunity. Since it

deliberately failed to appear, an assessment of the defence of lack of jurisdiction is out of

order. The motions by the State are devious tricks, now that the State is expected to argue

in the main proceedings that not the State but the UN is responsible for the eventsreferred to in the main proceedings. Legally, humanly and morally this is unacceptable.’

Continuing on from this rendition the District Court incorrectly held under legal

consideration 5.6 that:

‘The State’s own interest in its interim motion follows particularly from its obligation

under international law by virtue of article 105 paragraph 1 of the UN Charter. Under this

treaty the State has bound itself to safeguard as much as possible the immunity laid down

in the Charter, irrespective of how far it extends. Pleading this immunity in proceedings

before a national court of law at least falls within the bounds of possibility. It is not

important in this regard that the State itself is also a defendant, in this case alongside the

UN. Now that the State is a party to the proceedings in its own right, it does not need to

follow the – in principle much more cumbersome – course of an interim motion of third-

party intervention. Neither does the possibility of which the State now makes use prejudice

the fact that in our system of law there are also other options for (organs of) the State to

obtain a Court’s ruling on its jurisdiction regarding a non-appearing defendant. All these




options exist side by side and do not exclude each other. The diversity of the possibilities is

an expression of the State’s aforesaid obligation under international law rather than that

it impairs it. In view of all this the Court does not adopt the assertion by the Association et

al. that the State’s adopted course of action in the interim proceedings is procedurally

unacceptable. Neither can it be said that this course of action is humanly or morally

unacceptable to such a degree that legal consequences should be attached.’

Explanation of ground of appeal 2

15. It is necessary to comment on the cited legal grounds. First, the District Court reviews a

defence of the Association et al. that was not put forward in those terms. Consequently, the

District Court fails to consider an essential defence of the Association et al. Secondly, the

review by the District Court under legal consideration 5.6. is legally erroneous, whatever

might have been intended by the assertion of the Association et al. The Association et al.

will deal with this second point in a separate ground of appeal (ground of appeal 5).

16. The Association et al. refers to point 6 in its statement of defence in the incidents:

‘The State of the Netherlands and the UN have since 1995 shifted the responsibility for the fall of the Srebrenica Safe Area to the other. If it should continue to be held that immunity

attaches to the UN, it is to be expected that the State of the Netherlands in the main

proceedings will assert that it is not the State of the Netherlands that is responsible but

that it is the UN that is responsibility for the events before, during and after the fall of

Srebrenica. That follows, for example, from the letter that the Netherlands Ambassador to

Bosnia sent in the summer of 2004 to the Bosnian attorneys of the Mothers of Srebrenica.

The State of the Netherlands also did that in the case of H. Nuhanovic et al. against the

State of the Netherlands (District Court The Hague, cause-list numbers 06-1671 and 06-

1672), cases that likewise raised the issue of the conduct of Dutchbat in Srebrenica. That is

the actual interest of the State of the Netherlands in the motions and thus not the treaty

obligations outlined by the State of the Netherlands. (…)’

17. The Association et al. pointed out also under point 28 of the Memorandum of Pleadings in

the incidents that the State of the Netherlands had every interest in keeping the UN outside

these proceedings rather than it was so committed to its international obligations. Indeed,

should immunity be accorded to the UN immunity in this matter then the Association et al.




will be non-suited in their claims against the UN. The State of the Netherlands would then

easily be able to shift every responsibility for the Srebrenica drama onto the UN. They might

then possibly be liable but could not be called to account due to their immunity. It was

pointed out in the pleadings that two days before counsel’s arguments were heard the State

of the Netherlands in the context of two other proceedings of two individual families of

victims of Srebrenica (decisions dated 10 September 2008, case numbers 265615/ HA ZA 06-

1671, LJN BFO 184 and 265618/ HA ZA 06-1672, LJN BFO 0187) asserted that it was not the

State of the Netherlands but rather the UN who ought to be sued as the party responsible.

The Association et al. refers to legal consideration 4.7. in the case LJN BFO 0187:

‘In reply the State defended itself first and foremost with the assertion that the actions of

Dutchbat must be attributed exclusively to the United Nations – and thus not (jointly) to

the State.’

18. The same sentence is included in the LJN BFO 184 decision under legal consideration 4.5.

It is to be expected that the defence of the State of the Netherlands will be the same in the

present proceedings. The UN will first be kept out of the proceedings by means of the

interim motion so that then every blame can be shifted onto the UN. The assertion was that

this course of action by the State in combination with the fact that for the surviving

relatives of this genocide there would then exist no possible access to law is legally,

humanly and morally unacceptable. The District Court incorrectly, alternatively far too

narrowly interpreted the assertion of the Association et al. by reducing the argument of the

Association et al. to a trick by the State of the Netherlands in respect of the interim motion

and only to review whether the State of the Netherlands had its own interest. The District

Court failed to address the defence that the State of the Netherlands here advanced its own

well-understood proper interest as an international obligation. That international obligation

was nevertheless not created with the object of avoiding the responsibility of the State of

the Netherlands.

Ground of appeal 3

19. The District Court incorrectly held under legal consideration 5.2. that:

‘The assertion by the Association et al. that the Court by its decision of 7 November 2007

to grant leave to proceed in default of appearance by the UN already rendered a decision




about its jurisdiction in the case against the respondent is dismissed. Granting leave to

proceed in default of appearance just means that the Court has established that the non-

appearing defendant was summoned in the manner prescribed by law logically precedes the

assessment of the (international) jurisdiction of the Court with regard to the action against

this defendant, for it is possible that the defendant wishes to submit his views on this to

the Court, and then it must first be established whether he was summoned in accordance

with the law if he failed to appear. A Court may render a decision about its jurisdiction at

the same time as granting leave to proceed in default of appearance, but does not have to

do so. In this case this was not done; on 7 November 2007 the Court just gave a decision on

the leave to proceed in default of appearance as requested by the Association et al. but

not on its own jurisdiction in the case against the UN. In the extract of the record of the

cause-list session in question, of which the parties appearing are cognisant, no mention is

made of (any assessment by the Court, ex officio or on application, concenrning) the

Court’s jurisdiction or the UN’s immunity.’


20. The Association et al. under point 24 of its statement of defence argued at first instance

that the issue of jurisdiction was already a fait accompli. Leave to proceed in default of

appearance against the UN had already been granted on 7 November 2007.

Leave to proceed in default of appearance against a non-appearing international

organisation can only be granted following an ex officio review by the Court of its

international jurisdiction. In procedural law terms granting leave to proceed in default of

appearance also entails acceptance of the status of the defendant as a party to the

proceedings (see J. Spiegel, Vreemde staten voor de Nederlandse rechter, thesis 2001, page

31).

21. If the immunity of the UN were, however, to be absolute (which is the import of the

argument of the State of the Netherlands preceding the granting of leave to proceed in

default of appearance, as suggested by letter dated 17 September 2007, a position repeated

with extensive supporting argument in the letter of the Public Prosecutions Department,

dated 2 November 2007, which letter was also submitted to the District Court under Article

44 CCPr prior to the granting of leave to proceed in default of appearance), the cause list

judge should have ruled that no jurisdiction accrued to the Netherlands Court and should

have declared the Association et al. non-suited in their claims against the UN.




22. The Public Prosecutions Department, in the Advisory Opinion dated 2 November 2007 under

Article 44 CCPr preceding the granting of leave to proceed in default of appearance,

referred to the letter of the UN dated 17 August 2007 to the Permanent Representative of

the Netherlands to the UN. For that matter, the State of the Netherlands had also referred

the District Court to that letter in its letter dated 17 September 2007. The Public

Prosecutions Department (see page 2, paragraph 5) stated:

‘ According to the letter dated 17 August 2007 the UN, precisely in respect of the immunity

from jurisdiction to which it is entitled, did not appear before the Netherlands Court. This

is in accordance with the settled practice of the UN.’

This is entirely irreconcilable with the judgment of the District Court under legal

consideration 5.2, that:

‘it is possible that the defendant wishes to submit his views on this to the Court, and then

it must first be established whether he was summoned in accordance with the law if he

failed to appear.’

It was beyond any doubt, given the letter to the Permanent Representative to the UN, the

letter of the State of the Netherlands to the District Court and the Advisory Opinion of the

Public Prosecutions Department under Article 44 CCPr, that the UN would not appear. The

thought that the UN might possibly appear in the proceedings to make known its view on the

immunity issue is incomprehensible and should be dismissed.

23. The judgment of the District Court that the issue of leave to proceed in default of

appearance ‘logically’ precedes the judgment of the Court should likewise be dismissed.

That is anything but logical and even erroneous given:

1. the correspondence with the cause-list judge and the Advisory Opinion of the Public

Prosecutions Department under Article 44 CCPr;

2. the literature cited which demonstrates that leave to proceed in default of

appearance against a non-appearing international organisation can be granted only

following an ex officio review by the Court of its international jurisdiction. In

procedural law terms granting leave to proceed in default of appearance also entails





27. Parties have disputed at first instance whether the State of the Netherlands possessed a

sufficient interest in the claims brought by it. The State of the Netherlands invoked the

Bailiffs Act in aid of that interest. The District Court correctly considered that the Bailiffs

Act played no role in the review of the interest of the State of the Netherlands, but failed to

draw the conclusion from that determination. The keystone to the reasoning should have

been that the interest asserted by the State of the Netherlands did not flow from the Bailiffs

Act, alternatively that such interest did not exist.

28. The State of the Netherlands in its motion in interim proceedings gave quite some weight to

the content and origins of the Bailiffs Act, in particular to Article 3a of that Act. The State

of the Netherlands presented that argument in order to demonstrate that it had an own

interest in the interim proceedings. However, it applied here also that the State of the

Netherlands had already presented its point of view by means of the Advisory Opinion of the

Public Prosecutor’s Department under Article 44 CCPr, prior to the grant of leave to proceed

in default of appearance. In the interim statement of defence the Association et al.

examined in some detail the impropriety of the arguments of the State of the Netherlands

derived from Article 3a of the Bailiffs Act. The Association et al. addresses those arguments

below.

29. Article 3a paragraph 1 Bailiffs Act lays down that the bailiff shall notify the Minister where

he receives a request to perform an official act that might possibly be in breach of the

international obligations of the State of the Netherlands. In such event, the Minister may

declare to the process server that such official act would be, or the official act already

performed in the course of his duties is, in breach of the international obligations of the

State of the Netherlands (Article 3a paragraph 2). Such declaration shall be reasoned and

published. The declaration and notification shall be published in the Official Gazette

(Article 3a paragraph 4). That official act can no longer be legally performed from the

moment of the declaration (Article 3a paragraph 5) and where the official act consists of the

service of a writ of summons or notice thereof such official act is a nullity (Article 3a

paragraph 6).

30. The Association et al. failed to see already at first instance how Article 3a Bailiffs Act in the

present proceedings constitutes any bar to the jurisdiction of the Court or could otherwise




have any consequences for the validity of the writ of summons. After all, the process server

who served the writ of summons on the UN saw no (possible) conflict with the international

obligations of the State of the Netherlands, any more than the Minister issued any

declaration to the process server. As follows also from the Memorandum of Explanation to

Article 3a (TK vergaderjaar 1992-1993, 23 081, number 3, page 4) cited by the State of the

Netherlands, the writ of summons was validly served and it thus remains so.

31. Article 3a Bailiffs Act deals besides in particular with international obligations that relate (in

contrast to the present proceedings) to the immunity of foreign states (see Memorandum of

Explanation to Article 3a, TK (Second Chamber) Assembly Year 1992-1993, 23 081, number3, page 1):

‘For several years there has been renewed interest in the question how to prevent

embarrassment to the State of the Netherlands by civil proceedings being brought in the

Netherlands against another state or attachment being levied on its property in a situation

where such would be in breach of the international obligation of the State.’

(…)

‘In discussing this problematic there is a case to be made for the drawing of a distinction

between, on the one hand, the question whether, and, if yes, to what extent immunity

from jurisdiction in the Netherlands attaches to the foreign power, and, on the other, the

question whether, and, if yes, to what extent such an immunity also attaches in the area of

the enforcement of judgments.’

32. The process server correctly judged that no situation arose covered by Article 3a of the

Bailiffs Act. Consequently, it is for the Court to consider whether it has jurisdiction. The

legal interest raised by the viewpoint of the State of the Netherlands has already been

sufficiently addressed by the Public Prosecutor’s Department under Article 44 CCPr, prior to

the grant of leave to proceed in default of appearance.

33. The State of the Netherlands has stated that it has sufficient interest in the motions. To

that end the State of the Netherlands referred to the Bailiffs Act. The Association et al. has

demonstrated the incorrectness of the arguments of the State of the Netherlands and has




referred to the fact that the process server also saw no possible conflict with the

international obligations of the State of the Netherlands. All in all, no autonomous

(procedural) interest in these proceedings can therefore be derived from the Bailiffs Act.

34. The District Court came to an erroneous judgment in legal consideration 5.3. The District

Court failed to dismiss the assertion of the State of the Netherlands that in the present

proceedings it has sufficient interest in the motions on the ground of the Bailiffs Act. The

District Court reviewed merely a very limited part of the defence of the Association et al.

and concluded that the inapplicability of Article 3a Bailiffs Act was without consequence for

the decision of the Court on the issue of its jurisdiction. The District Court should – as

already said – have held that Article 3a Bailiffs Act in the present proceedings established no

interest of the State of the Netherlands in respect of the motions.

Ground of appeal 5

35. The District Court incorrectly considered under legal consideration 5.5 that:

‘It should be noted that the defences put forward by the Association et al., summarized in

3.4 under (1) and (2) of this judgment, are not in point. The State has a judicially relevantinterest of its own in its motion that the Court has no jurisdiction in the case against its co-

defendant.

This is without prejudice to the fact that the Public Prosecutions Department already drew

the Court’s attention to this matter of jurisdiction in its advisory opinion of 7 November

2007. Although the Public Prosecutions Department is an organ of the State it is not to be

identified with the State. In the execution of its duties, the Public Prosecutions

Department in this field too has a certain degree of independence vis-à-vis the Minister of

Justice, laid down in detail in the Judiciary (Organization) Act, as well as a responsibility

of its own laid down in other statutes. Apart from that, the State, as a party to the

proceedings, has a right of its own with further statutory powers attached to make use of

procedural possibilities. The Public Prosecutions Department does not have the possibility

to appeal if in a civil action it has given an advisory opinion by virtue of Article 44 of the

Code of Civil Procedure. In law, its opinion is just an advice of an authority that is not a

party to the proceedings. To a party to the proceedings on the other hand, such as the

State in this case, the remedy of appeal is usually available if an action instituted by it (in

this case: the State) is dismissed.’




36. Consequently, the District Court erroneously held under legal consideration 5.6 that:

‘The State’s own interest in its interim motion follows particularly from its obligation

under international law by virtue of article 105 paragraph 1 of the UN Charter. Under this

treaty the State has bound itself to safeguard as far as possible the immunity laid down in

the Charter irrespective of how far it extends. Pleading the immunity in proceedings

before a national court of law at least falls within the bounds of possibility. It is not

important in this regard that the State itself is also a defendant, in this case alongside the

UN. Now that the State is a party to the proceedings in its own right, it does not need to

follow the course of an interim motion for third-party intervention, in principle a much

more cumbersome course. Neither does the possibility of which the State now makes use

prejudice the fact that in our system of law there are also other options for (organs of) the

State to obtain a ruling of the Court on its jurisdiction regarding a non-appearing

defendant All these options exist side by side and do not exclude each other. The diversity

of possibilities is an expression the State’s aforesaid obligation under international law

rather than that it impairs it. In view of all this the Court does not accept the assertion by

the Association et al. that the State’s adopted course of action is unacceptable. Neither

can it be said that this course of action is humanly or morallly unacceptable to such adegree that legal consequences should be attached.’

37. Furthermore, the District Court has erroneously considered under legal consideration 5.7

that:

‘In this incident the State’s possible defence regarding the action brought against it is not

in issue. Anything the Association et al. argued or presumed in this respect therefore is

now left undiscussed.’

38. Finally, the District Court erroneously considered and held under legal consideration 5.8

that:

‘The assertion by the Association et al. that only the UN itself could have invoked immunity

it it had appeared fails already by virtue of the State’s own interest established here.’

Explanation to ground of appeal 5




No legal relevant interest of the State of the Netherlands

39. The Association et al. asserts above all that the real interest of the State of the Netherlands

in its interim motion is that the State of the Netherlands wishes to conceal its own failings

in respect of the fall of Srebrenica and turn liability away from itself. For that reason the

State of the Netherlands wishes to keep the UN out of the proceedings and obtain a ruling,

so that the State of the Netherlands can continue to shift the blame onto the shoulders of

the UN, just as it has done since 1995. Moreover, keeping the UN out of the proceedings

would seriously prejudice arriving at the truth. Every consideration that leads to the

judgment that the State of the Netherlands has another – legally to be respected - interest

disguises the real interest.

40. The order of precedence that the District Court employed for the review of the question

whether the State of the Netherlands possessed an own legally relevant interest in its

motion for a declaration of lack of jurisdiction by the District Court in the case against its

co-defendant, the UN (see legal consideration 5.6), and the question whether any possible

obligation had not already been discharged by the State of the Netherlands by virtue of the

official Advisory Opinion under Article 44 CCPr of the Public Prosecutor’s Department (see

legal consideration 5.5), is illogical. The first matter that needs to be established is whether

an own international obligation of the State of the Netherlands exists. If that is the case,

then it can be established whether the manner in which that was interpreted by the letter

of the State of the Netherlands dated 17 September 2007 to the cause list judge and the

Advisory Opinion of the Public Prosecutor’s Department under Article 44 CCPr still leaves

room for a separate interim motion. The Association et al. will first deal with the absence of

an own interest and then show that even should such an own interest exist did the letter of

the State of the Netherlands dated 17 September 2007 to the cause list judge and the

Advisory Opinion of the Public Prosecutor’s Department under Article 44 CCPr give sufficient

interpretation thereto.

Interest does not arise from Article 105 paragraph 1 of the UN Charter

41. The District Court held in the first sentence of legal consideration 5.6 that the own interest

of the State of the Netherlands in its interim motion followed particularly from its




international obligation under Article 105 paragraph 1 of the UN Charter. That is an

erroneous assumption. Article 105 paragraph 1 of the UN Charter states:

‘The organization shall enjoy in the territory of each of its Members such privileges and

immunities as are necessary for the fulfilment of its purposes.’

An international obligation on the Member States does not derive without more from this

cited article. Without further grounds being stated, which are absent, the own interest of

the State of the Netherlands does not derive from Article 105 paragraph 1 of the UN

Charter. Article 105 paragraph 1 of the UN Charter creates no own interest of the State of

the Netherlands any more than it includes an obligation on the State of the Netherlands to

put in place or create any provision of procedural law.

42. The District Court also failed to understand that Article 105 paragraph 1 of the UN Charter

restricted the immunity of the UN to immunity that is necessary for ‘the fulfilment of its

purposes’. The Association et al. have repeatedly argued that the immunity of the UN is not

absolute and should be subject to review. The District Court gave no evidence of such a

review in its judgment. Even more to the point, as will be dealt with below in a separate

ground of appeal, the District Court held (for example under legal considerations 5.13 and

5.22) that the UN enjoyed absolute immunity.

43. The Association et al. notes moreover that the State of the Netherlands in its motion in

interim proceedings under point 3.2.6 has stated that the law, alternatively the

international obligation of the State of the Netherlands itself to institute a motion derives

from Section 34 (of the Convention on the Privileges and Immunities of the UN, 13 February

1946, hereafter: the Convention). The District Court did not cite that Article given that it

deemed the interest to exist (apparently) on other grounds. The Association et al. will deal

with this assertion of the State of the Netherlands for the sake of completeness.

44. The relevant Article provides an opportunity, not an international obligation. Section 34

states as follows:

‘It is understood that, when an instrument of accession is deposited on behalf of any

Member, the Member will be in the position under its own law to give effect to the terms

of this Convention.’




The Article envisages a situation in which a State becomes a Member of the UN. That is

absolutely not the case in the present proceedings. The reference to the own law of the

State in question entails also that if an obligation relevant to these proceedings were to

arise under Section 34 for the State of the Netherlands then that also means that the

international treaties applicable under the law of the Netherlands are also here applicable

in these proceedings.

One can think in particular of Article 6 of the European Convention for the Protection of

Human Rights and Fundamental Freedoms of 4 November 1950 (ECHR), Article 10 of the

Universal Declaration of Human Rights of 10 December 1948 (UDHM) and Article 14 of the

International Covenant on Civil and Political Rights of 16 December 1966 (IVBPR), as well as

the Convention on the Prevention and Punishment of Genocide (Genocide Convention). The

rights that arise under these provisions apply absolutely and universally and permanently.

These rights are not subject to restrictions, in contrast to what by definition applies to the

immunity of the UN. In the originating writ of summons the Association et al. extensively set

out that should the District Court deem itself to be without jurisdiction to hear the claim,

the rights of the Association et al. that arise under the provisions cited above would be

violated.

45. The conclusion to be drawn from the above is that the State of the Netherlands is under no

international obligation to institute any motion in interim proceedings and therefore

possesses no interest.

That is even more cogent as the UN are themselves co-defendant and can advance without

hindrance their own interests if any. Should any international obligation exist on the State

of the Netherlands to invoke the immunity of the UN, such obligation is restricted by

national legislation, including the international treaties cited, which have direct effect.

Interest already sufficiently safeguarded by Article 44 CCPr

46. The following part of this ground of appeal is directed against legal consideration 5.5 in

which the District Court mainfested an erroneous view of Article 44 CCPr in general and in

these proceedings in particular.

47. The District Court held that it would not detract from the assumed interest under

international law of the State of the Netherlands that the Public Prosecutor’s Department




had already issued an Advisory Opinion under Article 44 CCPr, prior to the granting of leave

to proceed in default of appearance. It is, however, certainly important that the Public

Prosecutor’s Department did issue an Advisory Opinion under Article 44 CCPr. The issue of

the immunity was brought to the attention of the District Court by the Advisory Opinion.

There is no right or interest in bringing the same issue for a second time to the attention of

the District Court.

48. Furthermore, the District Court held that the Public Prosecutor’s Department was not to be

identified with the State of the Netherlands. That is in the first place factually erroneous.

The position of the Public Prosecutor’s Department was literally identical with the position

of the State of the Netherlands. Where normally the Public Prosecutor’s Department aims to

issue an impartial, independent legal advisory opinion in judical proceedings, the Advisory

Opinion in the present case merely reproduced the position of the State of the Netherlands.

The Public Prosecutor’s Department totally ignored all the arguments advanced against the

position of the State of the Netherlands, arguments extensively advanced by the Association

et al. Secondly, the Public Prosecutor’s Department is both legally and actually to be

identified with the State of the Netherlands. A State always has to be represented. If the

reasoning of the District Court were to be followed, the State of the Netherlands would

never be able to adopt a position or be able to perform a legal act or institute any legal

proceedings; the State after all always has to be represented and thus there is always a

question of attribution to the State of such acts by the representative. That must apply here

also.

At the very least, given the very great correspondence between the positions adopted in the

Advisory Opinion of the Public Prosecutor’s Department, on the one hand, and the motion of

the State of the Netherlands, on the other, there is the appearance of the exercise of the

powers within the meaning of Article 127 of the Judiciary (Organization) Act. That Article

lays down that the Minister of Justice is empowered to issue general and special directions

as to the exercise of the duties and powers of the Public Prosecutor’s Department. It is

entirely implausible that the Public Prosecutor’s Department here acted independently,

without instruction by the State of the Netherlands. Moreover, it emerged at the hearing of

18 June 2008 that the Public Prosecutor’s Department had consulted with the State

Advocate prior to the hearing. The Association et al. was not informed of the fact that the

Public Prosecutor’s Department would appear at the hearing. The Association et al. offers to

supply the proof of its assertions through a hearing of the Public Prosecutors involved at the




The Hague District Public Prosecutor’s Department’s Office, Mrs E.I. Schuier and Mr. M.R.B.

Mos, as well as the hearing of the Minister of Justice, Mr. E.M.H. Hirsch Ballin.

49. Furthermore, State organs are always identified with the State. The Public Prosecutor’s

Department is the State of the Netherlands when it involves the upholding of the criminal

legal system and the other duties imposed by statute (see Article 124 Judiciary

(Organization) Act), by which is also to be understood the duty to issue an advisory opinion

under Article 44 CCPr. Contrary to what the Association et al. would deem appropriate, the

State of the Netherlands in the person of the Public Prosecutor’s Department has not taken

an independent position, an independent position that in the view of the Association et al.

for that matter could have been expected also from the State of the Netherlands as a party

to the proceedings. That is incidentally also again raised by the Association et al. in

rejoinder. Both the Public Prosecutor’s Department and the State of the Netherlands have

strongly and partially allowed themselves to be influenced by their evident desire to keep

the UN out of the proceedings at all cost, in order to be able to confine the resonsibility for

the drama of Srebrenica to the UN.

50. Where the District Court considers that the Public Prosecutor’s Department has an

individual, narrowly circumscribed degree of autonomy in relation to the Minister of Justice,

that is true in itself. What is material in this case is that there is no question of autonomy.

To put it yet more strongly, it is extremely likely that the power to issue directions was

exercised. The extremely partial Advisory Opinion of the Public Prosecutor’s Department is

not otherwise open to interpretation. Moreover, it is precisely in the Judiciary

(Organization) Act and in particular in Article 124 Judiciary (Organization) Act, that the

Public Prosecutor’s Department is charged with carrying out the duty of the State of the

Netherlands in this legal area. That Article makes clear the supervisory role of the State of

the Netherlands over the administration of justice, which role is assigned to the Public

Prosecutor’s Department.

That supervisory role for the State of the Netherlands in the office of the Public

Prosecutor’s Department derives also from Articles 42 through 44 CCPr.

51. The judgment of the District Court that an organ of the State must not be identified with

the State would for that matter also mean that organs of the UN – such as Dutchbat – ought

not to be identified with the UN. That can obviously not be correct. The Association et al.




cannot perceive any legal construction other than identification that could here be

involved.

52. The consideration of the District Court that the State of the Netherlands as party to the

proceedings has other procedural powers than the Public Prosecutor’s Department is here

not relevant. In fact the District Court accorded the State of the Netherlands many more

procedural powers than it would an ordinary party. The issue here is whether the State of

the Netherlands has an international obligation and whether that gives rise to a sufficient

interest. It was discussed above already that there did not exist an obligation to leave no

means untried in order to guarantee the immunity of the UN (and certainly not by way of

overriding the most important treaties) by the deployment of procedural means. That the

Public Prosecutor’s Department does not have the possibility of going on appeal may be true

in itself but there is no obstacle to the Public Prosecutor’s Department again issuing an

advisory opinion under Article 44 CCPr in a case on appeal. All of this must be viewed

against the background that the UN itself choose not to enter an appearance. The

postulated interest of the State of the Netherlands is and remains an interest that is

inferred from that of the UN. The State of the Netherlands would have an international

obligation, while the UN (in whose interests the obligation would have been created)

chooses not to exercise their rights. Under those circumstances nothing should stand in the

way of the Court’s jurisdiction.

53. The conclusion of ground of appeal 5 is that the State of the Netherlands has no interest to

be upheld at law. Bringing the interim motions has impeded the establishment of the truth

and the State of the Netherlands has a party upon whose shoulders it can heap the blame

without any adverse consequence. The District Court consequently failed to understand

under legal consideration 5.7 that the possible defence open to the State of the Netherlands

against the claim against it should not have been in issue. That defence (that has been

advanced since 1995, namely, that it was not the Netherlands but the UN that was

responsible), gives insight into the actual interest of the State of the Netherlands. The State

of the Netherlands intended in the interim proceedings only to advance that actual interest.

These are not noble principles derived from international law but exclusively political ends

designed to shift blame and impede truth-finding in order to prevent damage to the image

of the State of the Netherlands and liability for compensation.




54. The District Court is evidently discomfitted with the earlier decision regarding default of

appearance, or at least that a decision was given that in fact cannot be remedied in the

same court. The Advisory Opinion of the Public Prosecutor’s Department under Article 44

CCPr was, after all, given prior to the grant of leave to proceed in default of appearance.

Moreover, the State of the Netherlands had then already given a concurrent view by letter

dated 17 September 2007. Cognisant of that Advisory Opinion and that letter the Court

granted leave to proceed in default of appearance and was not persuaded by the arguments

of the State of the Netherlands, whether or not advanced through the Public Prosecutor’s

Department. The District Court manifestly held that it had jurisdiction. The District Court

possibly wished to resolve this by acting as though the Public Prosecutor’s Department and

the State of the Netherlands could not be identified with each other. The District Court

again decided on the same viewpoint, but with a result that is irreconcilable with the grant

of leave to proceed in default of appearance. In this way the District Court has done what

the UN should have done, namely, appear in court so as to prevent judgment by default and

invoke immunity. Such a sympathetic attitude with respect to a non-appearing party (the

United Nations) compared with to a party to the proceedings that did appear (the State of

the Netherlands) is unknown. In the view of the Association et al. that is procedurally an

unacceptable state of affairs. No other party to the proceedings is assisted in such a manner

by a court after leave to proceed in default of appearance has been granted. Failure to

appear before the court must be cured by appearance by the party against whom leave to

proceed in default of appearance was granted. Deviating from the normal rules in favour of

the State of the Netherlands and the UN without any legal basis compromises the rights of

the Association et al. to a fair trial.

55. In anticipation of the ground of appeal against legal consideration 5.14 that has yet to be

set out the Association et al. already notes that a possible background for that attitude is to

be found in the judgment of the District Court under legal consideration 5.14 (final

sentence):

‘It is very likely that more far-reaching testing will have huge consequences for the

Security Council’s decision-making on similar peace-keeping missions.’

The District Court indicates with its judgment that its decision was based in large part on

political considerations.




56. Legal consideration 5.8 cannot be upheld given the above.

Ground of appeal 6

57. The manner in which the District Court reasoned under legal considerations 5.7 and 5.9 was

erroneous.


58. Under legal consideration 5.7 the District Court held :

‘In this incident the State’s possible defence against the action brought against it is not in

issue. Anything the Association et al. argued or presumed in this respect therefore is now

left undiscussed.’

It is incorrect that the District Court under legal consideration 5.9 then discussed the

defence of the State of the Netherlands in the main proceedings – at least insofar as the

State of the Netherlands returned to that in the interim motion. Either the defence in the

main proceedings is out of order, in which case legal consideration 5.9 is incomprehensible,

or alternatively the defence in the main proceedings is indeed in order, in which case the

assertions of the Association et al. against which that defence is formulated are in order and

in that case legal consideration 5.7 is insupportable. In that event the assertions of the

Association et al. should also have been included in the assessment of legal considerations

5.2 through 5.8.

Ground of appeal 7

59. The District Court erroneously considered under legal consideration 5.11 that:

‘ Applicable then, first of all, is the international-law rule of article 105, paragraph 1 of

the UN Charter, as detailed in article II, § 2, of the Convention. For the interpretation and

applicability of this and other international-law rules the Court bases itself upon prevailing

law as it finds expression in, amongst other things, the international-law practice. At issue

in this case is not a possible state immunity, but the immunity of an international

organization,expressly laid down in a treaty. Between these types of immunity, which are




very dissimilar to each other, there is no hierarchical relationship; the one type does not

extend “further”, in general terms, and is not more “important” than the other. Decisive

for the establishment of meaning of norms of immunity of international institutions is what

the parties to the treaty agreed in the founding treaty in question, and having due regard

to articles 31 and 32 of the Vienna Convention on Treaties. With regard to the UN it is true

that it is indisputably the most important international institution in the international

community, with an almost universal membership among states.’

And erroneously considered under legal consideration 5.12 that:

‘The allegations on which the Association et al. have based their actions against the UN

relate to acts (and omissions) in the implementation of the peace-keeping mission in

question, which is based on resolutions by the UN Security Council by virtue of the

aforesaid Chapter VII of the UN Charter. The allegedly culpable conduct of the UN fall

within the functional scope of this organization. It is particularly for acts within this

framework that immunity from legal process is intended.’

And further erroneously considered under legal consideration 5.13 that:

‘The startingpoint is that the UN itself, according to its letter to its letter to the Dutch

Permanent Representative to the UN, referred to in 1.1. and dated 17 August 2007,

expressly invokes its immunity. As far as the Court is aware the UN to date has always

invoked its immunity with regard to actions within the functional framework just referred

to, and no exceptions have ever been made in practice. The Association et al. have not

advanced anything from which the opposite can follow. On the basis of all of this the

District Court concludes that in international-law practice the absolute immunity of the UN

is the norm and is respected.’


Introduction

60. Ground of appeal 7 relates to the immunity of the UN. The Association et al. notes the

following by way of introduction. In this case there is no question of state immunity, rather

of immunity of an international organisation. That immunity is not absolute and is limited by




functional necessity. In that context the Association et al. will examine the judgment in the

Manderlier case. The Association et al. will also raise the issue that with reference to the

literature and the Report of the Advisory Commission on Issues arising under Public

International Law (CAVV) that given the functional character of the immunity of the UN the

right of access to the court weighs more heavily than immunity. The basis for the immunity

of the UN is Article 105 paragraph 1 of the UN Charter. That Article confines immunity to

what is necessary for the fulfilment of purposes. Immunity is thus functionally determined

and is not itself an objective. Given the Convention on Privileges and Immunities of 13

February 1946, which derives from the UN Charter, the UN – to the extent that it is

established that there exists a functional necessity for immunity – should have waived its

immunity. The Association et al. will address further in the context of this ground of appeal

that the Convention prescribes access to the court in order to be able to bring proceedings

against the UN (Section 29). The existence of that section demonstrates that an absolute

immunity was never intended by the Member States and was never created. Furthermore,

the substance and import of the Vienna Convention on Treaties is entirely different to that

which the District Court has ascribed to it. In the context of discussing that treaty the

Association et al. will cite foreign literature on the incorrectness and injustice of an

absolute immunity. Subsequently in this ground of appeal attention will be paid to the

learned opinion of the International Court Justice (ICJ), which opinion expressly opens the

possibility not to accord immunity on the ground of ‘the most compelling reasons’. The

Association et al. will demonstrate that such compelling reasons exist pre-eminently in this

case. Finally, the Association et al. will examine the fact that the District Court indicated

that it took international practice in part as the criterion for its decision. The District Court

actually failed to understand that the practice is entirely different to its understanding of

it, even if such practice actually were to exist. Here the question can be raised whether

‘the practice’ does justice to this case.

61. The District Court erroneously, at least insufficiently, reviewed whether the necessity for a

functional immunity for the UN existed in this exceptional case. If and insofar as such a

review was conducted the District Court erred at law regarding the functional immunity of

the UN.




State immunity versus immunity of international organisations

62. For a proper understanding of the immunity of the UN the Association et al. will briefly

repeat its viewpoint thereon. A discussion arose during the motions at first instance on the

immunity of states and international organisations. That difference of opinion was

important as the State of the Netherlands supported its motions by appeal to literature and

caselaw that was exclusively concerned with the immunity of states. The District Court also

recognized (more or less) that the immunity of states differed from that of international

organisations. The District Court proceeded in its considerations from a fundamental

misunderstanding by holding that the one immunity did not go further than the other.

Contrary to the situation with international organisations when a state is sued there is

always a court that has jurisdiction, namely, the court of the state that is being sued (see

C.G. van der Plas, De taak van de rechter en het IPR, Serie Onderneming en Recht, Kluwer

2005, page 263 et seq.). For this reason the immunity of states does indeed extend ‘in

general terms’ much ‘ further’ than that of international organisations. The caselaw on the

immunity of states is therefore of less utility in the present proceedings. The following

serves as explanation.

State immunity

63. The immunity of states from jurisdiction differs from the immunity of international

organisations both as respects scope as basis. The immunity of states is founded on the

principle of sovereignty, independence and equality of states and derives from the maxim,

‘ par in parem non habet imperium’; among equals is no-one supreme (see for example:

ECHR 21 November 2001, Al-Adsani/The United Kingdom, 35763/97, legal consideration 54;

P.H. Kooijmans, Internationaal publiekrecht in vogelvlucht, 9e druk, 2002, page 67). In

practical terms this means that the court of one state cannot give a judgment in a case

where another state is a defendant. However, this principle is no longer accepted as valid

law in the event of serious violations of human rights. The Association et al. refers to the

judgment of the Italian national courts regarding the serious violations of human rights

committed by German military forces during the Second World War. The German State,

supported in this by the Italian State, on 23 December 2008 brought a case on this issue

before the ICJ. Both of the states involved based themselves in that case on the position

that the Italian courts lacked jurisdiction and that the German State could be summoned




only in Germany. It was not disputed that in any event the German court in such a case

would offer access to justice.

64. Apart from that, it is also the case that in the course of time limitations have been placed

on the immunity of states. Those limitations support the viewpoint of the Association et al.

that in this case no immunity should be accorded. A leading case in which the immunity of

states is restricted is the judgment of the Hoge Raad of 25 November 1994 (NJ 1995, 650;

Marokko/De Trappenberg). The State of the Netherlands dealt extensively with this case in

the motions at first instance under numbers 3.2.9 and 3.2.10. The Association et al. refuted

those propositions under points 27 through 31 of its statement of defence in the incidents

and refers here to those assertions. The Association et al. repeats the conclusion drawn

therefrom that the Hoge Raad in that case held that exceptions to state immunity were

possible and that in that case there was an issue of such an exception.

Functional versus absolute immunity

65. The Association et al. will deal further with the fact that the immunity of the UN is limited

to the functional necessity for it, known as functional immunity.

The District Court virtually ignored a number of aspects thereof that are decisive for this

case. The Association et al. will in succession deal with the legal rules that apply, the

practice of international law and the interpretation thereof in the light of the Vienna

Convention on Treaties. The decision in Manderlier/UN (Tribunal Brussels, Manderlier/UN,

11 May 1966, 45 International Law Reports 446) should have been of seminal influence. That

decision was extensively dealt with at first instance by the Association et al. It is certainly

remarkable that the District Court failed to address it at all. The Manderlier/UN Case is to

date the only case on the immunity of the UN.

The meagre caselaw that the District Court did advance as grounds for its decision did not

concern the UN. Perhaps the reason for that omission lies in the fact that nor did the State

of the Netherlands deal with Manderlier/UN. The District Court, in the view of the

Association et al., too sympathetically followed the interest pleaded by the State of the

Netherlands.

66. The case of Manderlier against the UN had similarities with as well as differences from the

present proceedings. The Association et al. will now address these matters.




67. In the Manderlier Case the UN presented no defence on the merits but rather invoked

immunity under Article 105 of the UN Charter. The Tribunal in Brussels held that the

complaint against the UN could not be heard due to the immunity of the UN. The Court of

Appeal in Brussels upheld this decision in a judgment of 15 September 1969 (69 ILR 139). In

the proceedings between Manderlier and the UN Manderlier invoked, inter alia, Article 6 of

the ECHR and Article 10 UDHR. The Court of Appeal held that the UDHR lacked the force of

legislation (see 45 ILR, page 451). The Tribunal in Brussels held further that only fourteen

states were parties to the convention (see 45 ILR, page 452). Insofar as the numerical

argument was valid in 1966 that is certainly not the case now that there are presently 46

countries that have acceded to the ECHR.

68. The Tribunal in Brussels held in the Manderlier Case that a citizen has in principle a right of

access to the court. The Tribunal therefore recognized in that regard also the obligation of

the UN that arises from Section 29 of the Convention on Privileges and Immunities of 13

February 1946 and reached an important conclusion (see 45 ILR, page 451):

‘In spite of this provision of the Declaration which the U.N. proclaimed on 10 December

1948, the Organization has neglected to set up the courts which it was in fact already

bound to create by Section 29 of the Convention [on Privileges and Immunities] of 13February 1946.’

The UN were under the obligation to provide access to an independent court. The obligation

was not enforced only because it was assumed in 1966 that the UN still had the time to

fulfill that obligation. It must be assumed that even the Belgian court, now some 40 years

later, would no longer accept this failing by the UN.

69. It follows from the Manderlier Case in the only decision in the international practice on the

immunity of the UN that a review was conducted of Article 6 ECHR, Article 14 ICCPR and

Section 29 of the Convention. Such weighing of interests entails that immunity, contrary to

what the District Court, The Hague has held, is not absolute. Besides that, the decision in

the Manderlier Case demonstrated that international practice certainly proceeds on the

basis of an immunity that is limited in scope. In addition, the decision in the Manderlier

Case confirms that the UN are not above the law and that the UN should itself have provided

access to justice under Section 29 of the Convention. The Association et al. also points out

that the District Court totally ignored this Article in this context. Section 29 proves that the




immunity of the UN has no absolute character.

70. The case of Manderlier against the UN is in another respect of an entirely different order to

the present proceedings. First, the Manderlier Case did not involve genocide, but rather

concerned the destruction of property. Secondly, the judgment in the Manderlier Case was

given at a time when the UN was not yet involved on a large scale in international conflicts,

as is now the case. It was unimaginable at that time that genocide could be committed

under the eyes of UN troops.

71. The functional (and accordingly limited) character of the immunity of international

organisations is confirmed in the caselaw of the Court of Justice of the European

Communities (HvJ EG 13 July 1990 (Zwartveld), under legal consideration 19):

‘Viewed in the light of these principles, the privileges and immunities accorded to the

European Communities by the protocol possess only an operational nature, to the

extent that they are intended to prevent the Communities from being obstructed in

their operations and independence (…).’

72. The UN has itself recognized the problematic of an alternative legal remedy. That is the

reason why Section 29 of the Convention provides:

‘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 to which

the United Nations is a party;’

Despite the fact that this provision originated in 1946, the UN presently – more than sixty

years later – have still not established any such legal remedy.

73. The literature cited by the Association et al. at first instance remained undiscussed by the

District Court. That is incomprehensible given the fact that the District Court based its

grounds (legal consideration 5.13) on the law in force and on international law practice. A.

Reinisch also confirms that Belgium, as a party to the ECHR, should have offered Manderlier

access to the Tribunal through the national court system and should not have upheld the




claim to immunity (A. Reinisch, International Organizations before National Courts, 2000,

page 289). K. Wellens has expressed the same opinion (see: ‘Fragmentation of international

law and establishing an accountability regime for international organizations: The role of

the judiciary in closing the gap’, in Michigan Journal of International 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 of immunity (K. Wellens, op. cit., page 18):

‘(…) access should prevail over immunity if no legal remedy is available.’

74. The Advisory Commission on Issues arising under Public International Law (CAVV), theprincipal advisor of the Netherlands Government on issues of international law, shares the

above view that, in the absence of any other legal remedy, the right of access to the court

is more important than the claim to immunity. Thus, the CAVV writes in Article 4.5.2 of its

Report that the national court:

‘(…) should proceed to a prima facie investigation in the light of international legal norms

of the availibility of adequate internal legal remedies that are available within an

international organisation to the aggrieved party. In the event of a negative result it is

desirable that national courts do not accord immunity and proceed to settlement of the

dispute at hand .’

75. It is meanwhile accepted that the immunity of international organisations, such as the UN, is

no longer self-evident (see A. Reinisch, in R. Hofmann et al., Die Rechtskontrolle von

Organen der stateengemeinschaft, 2007, page 43). There are thus increasing numbers of

national courts that, in order to guarantee an effective protection of legal rights, do not

recognise the immunity of these organisations. Finally, the Association et al. refers in the

context of legal practice and current law to the publication of Professor J.A. Frowein(Director Emeritus of the Max Planck Institute for Public International Law in Heidelberg and

co-commentator of The Charter of the UN, B. Simma, a commentary, the leading work in

the legal field on the United Nations). In the Article “UN-Verwaltung gegenüber dem

Individuum – legibus absolutus in: Allgemeines Verwaltungsrecht – Zur Tragfähigkeit eines

Konzepts”, 2008, p. 333 – 347, lodged by the Association et al. at first instance as annex to

the Memorandum of Oral Pleadings, Professor Frowein reasoned as follows:




‘Darüber hinaus kann gefragt werden, ob die Vereinten Nationen in einem derartigen Fall

nicht verpflichtet sind, auf ihre Immunität zu verzichten, was im Rahmen der Regelungen

möglich ist. Es entspricht nicht dem auf Menschenrechtsschutz angelegten System der

Vereinten Nationen, wenn für einen Völkermord insoweit kein Ersatz geleistet werden

kann. Dafür spricht auch die Resolution der Generalversammlung vom 16.12.2005 (Res.

60/147) “Basic principles and guidelines on the right to a remedy and reparation for victims

of gross violations of international human rights law and serious violations of international

humanitarian law.” In Art. 2 empfehlen die Vereinten Nationen den Mitgliedstaaten, diese

Prinzipien anzuwenden und in derartigen Fällen für das Individuum Ersatzansprüche zu

begründen. Es kann bezweifelt werden, ob diese Grundsätze bereits geltendes Völkerrecht

sind, aber jedenfalls legen sie eine wesentliche Tendenz fest. Unbestritten ist, dass

internationale Organisationen wie die Vereinten Nationen völkerrechtlich für Delikte

haften. Dass in Srebrenica ein völkerrechtliches Delikt auch der Vereinten Nationen

vorliegt, wird in der Klageschrift eingehend begründet und dürfte weitgehend unbestritten

sein. Daraus folgt, dass jedenfalls gegenüber dem Heimatstaat betroffener

Staatsangehöriger eine Verpflichtung der Vereinten Nationen besteht. Es spricht aber vieles

dafür, in derartigen Fällen bei Untätigkeit des Heimatstaates auch dem Individuum gegen

die Organisation Ansprüche zuzugestehen.’

(“In addition it may be asked why the United Nations are not obliged in such a case to waive

their immunity, which is possible under the rules. It is not consistent with the system of the

United Nations, which is designed to protect human rights, that no compensation should be

paid for genocide. This point of view is also supported by the resolution of the General

Assembly of 16 December 2005 (Res. 60/147) “Basic principles and guidelines on the right to

a remedy and reparation for victims of gross violations of international human rights law and

serious violations of international humanitarian law.” In Article 2, the United Nations

recommend that the member states apply these principles and allow compensation claims

for individuals in such cases. It is doubtful whether these principles already constituteapplicable law of nations, but they do reflect an important trend. It is undisputed that

international organisations such as the United Nations are liable for tort under the law of

nations. That a tort under international law was also committed by the United Nations in

Srebrenica was shown in detail in the writ of summons and should be largely undisputed. It

follows from this that there is an obligation on the part of the United Nations at least vis-à-

vis the home state of the citizens concerned. But there is much that speaks for also giving

individual claims against the organization in such cases if the home state remains inactive.”

translation by lawyers)




It follows from this quotation also that the District Court’s understanding of international

law and international legal practice is incorrect.

Basis of the immunity of the UN under international law

76. The Association et al. will now deal in greater depth with Article 105 of the UN Charter,

with Article II, § 2 of the Convention and the interpretation of those Articles on the basis of

the Vienna Convention on Treaties. The framework introduced by the District Court on this

point is incomplete and legally erroneous.

77. Article 105 of the UN Charter must be interpreted in the light of Article 1 of the UN Charter.

Article 1 of the UN Charter reads:

‘The Purposes of the United Nations are:

(…)

3. (…) and in promoting and encouraging respect for human rights and for fundamental

freedoms for all without distinction as to race, sex, language, or religion; and

4.To be a centre for harmonizing the actions of nations in the attainment of these commonends.’

Article 105 paragraph 1 of the UN Charter states:

‘The Organisation shall enjoy in the territory of each of its Members such privileges and

immunities as are necessary for the fulfilment of its purposes.’

The UN consequently has immunity to the extent that it is necessary for the fulfilment of

the purposes of the UN. This does not relate exclusively to the general purposes of the UN

but also to the purposes that arise from a specific mandate, such as the mandate to ensure

protection of the Srebrenica Safe Area and its population. The Association et al. expressly

points out in advance that upholding human rights, including hereunder the right of access

to an independent court, is one of the purposes of the United Nations.

The immunity of the UN must be instrumental in furthering that purpose and it must not be

so that such immunity obstructs the realisation of that purpose. The District Court showed

no interest in such a notion of the relationship between objective and immunity, to which

the latter must be instrumental. If the judgment of the District Court were to be followed,




the purpose would become subservient to the immunity, which would be in conflict with the

letter and spirit of Articles 1 and 105 of the UN Charter.

78. The District Court erred at law under legal consideration 5.12. After all, the District Court

incorrectly held that the acts, alternatively, omissions of the UN fell under Chapter VII of

the UN Charter, as a result of which the disputed behaviour of the UN would fall within the

functional scope of the organisation and on that ground immunity would apply. The review

criterion must be whether the claimed immunity is necessary or not for the fulfilment of the

purposes as set out in Article 1 of the UN Charter. It appears from the above and from what

yet follows that in the present case there is no question of any such necessity. The UN are in

no way obstructed in the implementation of their duties by virtue of the fact that the

contested appearance of the UN would be reviewed by an independent court. The

Association et al. also refers in this context to Section 29 of the Convention, on the ground

of which it was forseeable that the actions of the UN would be reviewed. Invocation of the

immunity of the UN by the State of the Netherlands serves purely political objectives. In the

grounds of the District Court there is no correlation between the invocation of immunity and

the fulfilment of the purposes prescribed by Article 105 paragraph 1 of the UN Charter. Nor

are the rights of individuals as envisaged in Article 1 of the UN Charter served by the

invocation of immunity. For the rest, as appears already from the above, should there be an

issue of functional necessity for immunity, in the event of conflict between the necessity

and the purposes, the immunity should yield before the purposes of the UN.

79. Article 105 paragraph 3 of the UN Charter provides that the General Assembly of the UN can

make proposals with a view to determining the details of the application of paragraphs 1

and 2 of Article 105 of the UN Charter. That does not entail, of course, that such

elaboration can set aside the rule laid down in Article 105 paragraph 1 of the UN Charter.

The Convention on the Privileges and Immunities of the UN was adopted by the General

Assembly of the UN in 1946. It follows from that Convention that where the UN has

immunity, the UN can waive that immunity. Article II paragraph 2 of this Convention states:

‘The United Nations (…) shall enjoy immunity from every form of legal process except

insofar as in any particular case it has expressly waived its immunity.’




80. The Convention is based on the UN Charter and is therefore of a subordinate character. That

energes from the Preamble to the Convention. Articles 104 and 105 of the UN Charter are

there reproduced. The Preamble continues:

‘Consequently the General Assembly by a Resolution adopted on the 13 February 1946,

approved the following Convention and proposed for accession by each Member of the

United Nations.’

As the Convention is based on Articles 104 and 105 of the UN Charter, the Convention cannot

extend further than the superior ranked UN Charter. The primacy of the UN Charter is

expressly confirmed by Article 103 of the UN Charter:

‘In the event of a conflict between the obligations of the Members of the United Nations

under the present Charter and their obligations under any other international agreement,

their obligations under the present Charter shall prevail.’

The District Court’s interpretation of immunity on the basis of the Convention is erroneous.

The District Court should have determined the scope of the immunity on the basis of the UN

Charter.

Obligation to waive immunity

81. At first instance the Association et al. argued already in the originating writ of summons

that there was no issue of waiver in the present case given that it has been shown that no

immunity attaches to the UN as a result of Article 105 of the UN Charter (see number 449 of

the writ of summons). Insofar as in these proceedings a functional necessity for immunity

might exist the Association et al. argues – alternatively - that the UN should have waived

any claim to it. The following serves as explanation therefor.

82. The Convention states that the immunity of the UN should remain limited to cases where a

functional necessity for immunity exists. Section 14 of the Convention provides:

‘Privileges and immunities are accorded to the representatives of Members not for the

personal benefit of the individuals themselves, but in order to safeguard the independent




exercise of their functions in connection with the United Nations. Consequently a Member

not only has the right but is under a duty to waive the immunity of its representative in

any case where in the opinion of the Member the immunity would impede the course of

justice, and it can be waived without prejudice to the purpose for which the immunity is

accorded.’

83. A similar provision is included under Section 20, for the ‘Officials’ of the UN and in Section

23 for ‘Experts on missions’. Although a similar provision is not expressly stated for the UN

itself, the same rule should apply also to the United Nations itself that immunity should not

serve to prevent claims for compensation but rather that the ‘course of justice’ should

prevail. Moreover, it should be emphasized yet again that this case concerns the worst

possible violations of human rights. Frowein also comes to the conclusion in the article cited

above that in this type of cases the UN are obliged to waive any possible claim to immunity

(see number 74 of these Grounds of Appeal).

Where the UN wrongly fails in its obligation to waive immunity, the Court may not uphold

that claim to immunity.

Significance of Section 29 Convention

84. The District Court dealt with Section 2 of the Convention. Where it was amazing that the

District Court did not include Sections 14, 20 and 23 in its judgment, it is totally

incomprehensible that the District Court actually ignored Section 29 of the Convention,

under the Chapter ‘Settlement of disputes’. Section 29 reads:

‘The United Nations shall make provisions for appropriate modes of settlement of:

(a) disputes arising out of contracts of a private law character to which the United Nations

is a party; (…)’

What emerges from the above is that already in 1946 account was taken of the possibility

that the United Nations would be involved in a private law dispute and that it should be

ensured that access to justice would exist for such a dispute. That firmly establishes that




the decision of the District Court that an absolute immunity of the United Nations should

exist is irreconcilable with the Convention. The fact that the United Nations has failed to

create a legal remedy does not entail that the United Nations are unassailable. That should

have been all the more reason for the District Court to take jurisdiction. The Association et

al. will return to this in the context of the discussion of the decision of the District Court

concerning the right of access to the Court on the ground of Article 6 ECHR and Article 14

ICCPR. With regard to those Articles the District Court for incomprehensible reasons failed

to address Section 29.

Interpretation in accordance with the Vienna Convention on Treaties

85. The District Court has correctly held that the Convention of Vienna on the Law of Treaties

(Trb. 1977, no. 169), hereafter: ‘the Vienna Convention on Treaties’, must be taken into

consideration in the judgment of immunity norms (see legal consideration 5.11). It is not

actually clear from the judgment in the case that the District Court actually reviewed the

Vienna Convention on Treaties and that it underpins its judgment. In that respect the

judgment suffers from an absence of grounds. If the District Court had reviewed the Vienna

Convention on Treaties it would have come to a different judgment. The following serves as

explanation.

86. Article 31 paragraph 1 of the Vienna Convention on Treaties reads:

‘ A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be

given to the terms of the treaty in their context and in the light of its object and purpose.’

Article 32 of the Vienna Convention on Treaties reads:

‘Recourse may be made to supplementary means of interpretation, including the

preparatory work of the treaty and the circumstances of its conclusion, in order to confirm

the meaning resulting from the application of article 31, or to determine the meaning

when the interpretation according to article 31:

a) leaves the meaning ambiguous or obscure; or




b) leads to a result which is manifestly absurd or unreasonable.’

The Association et al. fails to understand why the District Court in its interpretation of

Article 105 of the UN Charter did not at least address the question whether the result of

that interpretation did not lead to a result that was unreasonable or absurd. After all, the

victims of a genocide (which occurred under the eyes of the United Nations, when the

United Nations had promised protection) were denied every possible legal remedy, and that

while Section 29 of the Convention, on which the District Court based its decision,

guarantees a legal remedy. The words ‘unreasonable’ and ‘absurd’ are even rather

euphemistic for the situation in which the District Court has placed the victims of this

genocide. That conclusion serves to justify having recourse to supplementary means of

interpretation, which in this context are of particular importance for the purposes for which

the UN was instituted, including the protection of human rights, and thus including the right

of access to justice. Also of importance for interpretation are the circumstances under

which the treaty was concluded. One of the cornerstones of the formation was the universal

desire and necessity to prevent genocide in the future. Article 105 paragraph 1 of the UN

Charter should not be interpreted in the way that the District Court has done where it

should have been established that the granting of immunity conflicts with the realisation of

the purposes and leads to the frustration of fundamental human rights.

87. The principle that the shield of immunity of an international organization has an

unavoidable obverse, namely, the obligation of the international organisation to ensure its

own independent legal remedy, is also expressed in the foreign literature (see for example

K. Odendahl, in her Article (on the discussion of the decision of 25 January 2005 of the

French Cour de Cassation in the case Degboe/African Development Bank) Immunität

Internationaler Organisationen bei Dienstrechtsstreitigkeiten, IPRax 2007, p. 339 – 342, most

particularly p. 340 righthand column):

‘Seitens der herrschenden Ansicht in Literatur und Rechtsprechung wird daher mittlerweile

die These vertreten, dass internationale Organisationen nicht nur berechtigt, sondern sogar

verpflichtet sind, eigene unabhängige Überprüfungsinstanzen zu schaffen, die als Gerichte

verbindlich über Dienstrechtsstreitigkeiten entscheiden. Begründet wird die Pflicht damit,

dass eine internationale Organisation trotz der Befreiung von der innerstaatlichen

Gerichtsbarkeit weiterhin an das Recht, insbesondere auch an die rechtsstaatlichen und




menschenrechtlichen Verpflichtungen ihrer Mitgliedstaaten, gebunden bleibe. Die Pflicht,

einen organisationsinternen Rechtsweg für Streitigkeiten mit Dritten zu schaffen, sei die

Kehrseite der Immunität.’

(“Legal authors and the courts of law now therefore dominantly take the point of view that

international organizations are not only entitled, but even obliged to create their own

independent review boards which take binding decisions as courts in disputes with staff

members. It is said, as a reason for this obligation that, in spite of its immunity from

national jurisdiction, an international organization remains bound by the law, especially also

the rule of law and the human rights obligations of its member states. The duty to create a

legal process with resort to a court within the organization for disputes with a third party issaid to be the downside of immunity.” translation by lawyers)

It follows from this also that the immunity of the United Nations should exist only insofar as

an own legal remedy is offered. Where that is absent the national court should deem itself

to have jurisdiction.

88. The judgment of the District Court violates Articles 31 and 32 of the Vienna Convention onTreaties. The Convention prescribes a legal remedy under Section 29, which has not been

implemented. The application of Section 2 without taking Section 29 into account leads to a

clearly absurd and unreasonable result.

Advisory Opinion ICJ

89. The District Court concluded under legal consideration 5.13 that absolute immunity should

be the norm for the United Nations. The incorrectness of that judgment emerges already

from the above.

In addition, the caselaw of the International Court of Justice (hereafter: ‘ICJ’) demonstrates

positively that a weighing of interests should be conducted. A weighing of interests is

irreconcilable with the absolute character of the immunity of the UN accepted by the

District Court. The Advisory Opinion of the ICJ to be discussed below is of importance here.




90. The ICJ gave an Advisory Opinion in 1999 (ICJ 29 April 1999, Difference Relating to Immunity

from Legal Process of a Special Rapporteur of the Commission on Human Rights, I.C.J.

Reports 1999, p. 62 et seq., hereafter: ‘the Advisory Opinion’). This concerned the immunity

of international organisations in general and the UN in particular. The State of the

Netherlands also referred to the Advisory Opinion under point 3.2.7 of its motion in interim

proceedings at first instance. The State of the Netherlands asserted on the basis of this

Advisory Opinion of the ICJ that where proceedings are brought against the UN, the country

where the proceedings are brought is obliged to inform the Court of the position of the

Secretary-General of the UN regarding the question of its immunity. The Court would then

be obliged to follow the view of the Secretary-General of the UN unless there were

compelling reasons not to acknowledge that immunity. Such a compelling reason would only

exist, according to the State of the Netherlands, where the UN expressly waived its

immunity.

91. The Advisory Opinion of the ICJ in the matter referred to above first of all related to an

essentially different fact-complex. It concerned a dispute against the Special Rapporteur for

the UN Commission for Human Rights regarding the independence of the courts and

attorneys in Malaysia. It did not, therefore, involve proceedings brought against the UN

itself and the gravity of the case was of an entirely different order from genocide. After this

UN Rapporteur had expressed negative comments in a newspaper interview on the subject

of his enquiry he was beset with legal proceedings claiming compensation. This was

manifestly an attempt to influence the judgment of the UN Rapporteur by putting him under

pressure with legal proceedings during the enquiry. Section 22 of the Convention provides

the possibility for the Secretary-General to give a finding on the question whether an official

of the UN has acted within the performance of his or her duties, in which case functional

immunity would attach. The Secretary-General of the UN concluded that the UN Rapporteur

remained within the scope of his task when expressing his opinions so that functional

immunity attached.

According to the ICJ Malaysia should have brought the issue of immunity to the attention of

the court at the commencement of the legal proceedings.

92. The power of the Secretary-General to give a finding relates to the question whether there

was an exercise of function during a mission and not to the question whether immunity

ought to be accorded (see number 60 of the Advisory Opinion). The scope of immunity is

clearly set out under number 61 of the Advisory Opinion:




‘When national courts are seised of a case in which the immunity of a United Nations agent

is in issue, they should immediately be notified of any finding by the Secretary-General

concerning that immunity. That finding, and its documentary expression, creates a

presumption which can only be set aside for the most compelling reasons and is thus to be

given the greatest weight by national courts.’

This consideration relates to ‘experts’ in respect of whom the Convention lays down under

Article 23 that the Secretary-General may only waive immunity where in his opinion

immunity would impede the course of justice. Accordingly, there is in such cases a

legislative basis for a finding of the Secretary-General, which, moreover, can be departed

from. The ICJ did not hold that only the waiver of immunity by the UN was such a

compelling reason that it constituted a ground for departing from the basic assumption of

immunity. There is thus, according to the ICJ, certainly a possibility to depart from

immunity, namely, ‘for the most compelling reasons’. That determination entails that the

judgment of the District Court that the immunity of the United Nations must be absolute is

erroneous. There can be no doubt that involvement in genocide constitutes the ‘most

compelling reason’. Indeed, no greater violation of human rights exists. Again for this reason

no immunity applies in this case.

93. The Association et al. points out further that the ICJ in the Advisory Opinion dealt expressly

with the question whether in that specific case the expression of opinion by the UN

Rapporteur was done in the function of and within the scope of the mission entrusted to

him, in which case immunity could be accorded (see number 47 et seq. of the Advisory

Opinion). The Advisory Opinion is a confirmation by the ICJ that in respect of international

organisations in general, and the UN in particular, there is an issue of functional (and not

absolute) immunity.

94. Given the facts set out in the originating writ of summons (under numbers 6 through 287)

the present case is of an entirely different order than the case discussed by the ICJ in its

Advisory Opinion. Thus there is no issue of influencing the UN, against which the functional

immunity of the UN correctly offers protection. The mission to protect the civilian

population that was in the Srebrenica Safe Area ended already some fourteen years ago.

Furthermore, it is impossible to compare (joint) responsibility for genocide with a claim for

compensation for possibly defamatory opinions expressed by a UN Rapporteur. The examples




of functional necessity for immunity cited in the literature (see Kooijmans op. cit. pages

171-172) are likewise of a fundamentally different order than the present case.

95. The interim conclusion that here must be drawn is that the immunity of the United Nations

is not absolute but remains confined to the cases in which a functional necessity for

immunity exists. That functional necessity is not present in this case. The following serves

as explanation.

No necessity for immunity

96. The admissiblity of the action brought against the UN does not entail any influencing or

impeding of the functioning of the UN in carrying out its duties. As was set out extensively in

the writ of summons the UN in its report on Srebrenica judged that it had made numerous

errors itself. What is at issue in these proceedings is the question, what are the

consequences of those errors? It is not the functioning as such of the UN that is at issue,

rather the question whether the UN should be protected by the rule on immunity in respect

of every type of unlawful conduct. As will be extensively discussed below in the context of

the weighing of interests, where genocide is allowed to happen there should at the very

least be an account given and it cannot be that that is prevented by according absolute

immunity. That applies all the more for an organisation that has set itself – inter alia – the

purpose of preventing genocide and permanently dedicates itself to human rights. This

organisation has apparently made it a policy not to appear in legal proceedings in order to

claim immunity.

The State of the Netherlands in its interim motion for a declaration of lack of jurisdiction

has attempted to cover up this most spectacular violation of human rights under the cloak of

immunity. It is unacceptable that the District Court has allowed that claim.

97. The Association et al. recalls that the genocide was committed fourteen years ago and the

UN claims that lessons have been learned from this drama. In the case of the UN Rapporteur

the Public Prosecutor’s Department posed the question whether the Rapporteur had made

improper statements in the media. It was acknowledged by the International Court of

Justice even in that far less consequential case that exceptional cases exist where it is

possible not to accord immunity to the UN. In the present case the following facts serve as

starting points:




- it is established that the UN had to protect the people in the Safe Area in order to prevent

violations of human rights

- it is established that the UN disarmed the civilians

- it is established that the UN offered no resistance to the advancing Serbs

- it is established that there was no intervention when aid convoys were stopped

- it is established that massive violations of human rights occurred

- it is established that the weapons were not returned by Dutchbat when the population

wished to resist the advancing Serbs with the announcement by Dutchbat that it would

ensure protection

- it is established that the UN provided no Close Air Support

- it is established that the UN co-operated in the deportation of the victims

- it is established that genocide was committed.

It was not open to the UN under these circumstances to make an (indirect) appeal to

immunity. The UN should instead have waived immunity. Whatever may be the case, given

the above facts the claim of immunity has to be ignored and the rights of the Association et

al. have to prevail. An independent judicial review of the claim of the Association et al.

should take place.

Criticism of international practice as a norm

98. The District Court held under legal consideration 5.13 that absolute immunity of the United

Nations was the norm in international practice, and that such norm is to be respected.

The judgment erroneously ignores the fact that the United Nations has never before been

sued on the basis of the fact complex set out in the writ of summons, which includes

involvement in genocide and also other very serious violations of human rights. No

international practice existed in this field prior to 1995 (happily) and no caselaw exists onthis type of exceptional case.

99. Besides that, the question should be posed whether international practice should be the

norm in the present case. Practice can be a source of law but may not be misused as an

excuse to legitimate unlawful conduct. It is rather the law that should prevail not the

practice.




100. Even where the District Court had held that international practice entailed an absolute

immunity for the United Nations, the District Court should still have reviewed whether the

result in the present case was just. The facts set out in the originating writ of summons

show that this is an exceptional case. To the extent that any case can be dismissed by

reference to general rules, the District Court should not have done so in the present case.

An actual review should indeed always be conducted. International discussion has followed

the disputed judgment of the District Court to the effect that insofar as an absolute

immunity for the United Nations might already exist, international practice would benefit

from an outcome that was different to that given by the District Court.

There has also been heavy criticism of the judgment of the District Court in the Netherlands

(see for example C.M. Schrijnen, Immuniteit van het UN, NJB, 2008, pp. 1801-1802).

101. The upshot of the above is that the immunity of the UN is not absolute. The District Court

should have reviewed whether there existed in the present case a functional necessity for

immunity. There is no room for a functional necessity for immunity of the UN in the case of

genocide. Moreover, a weighing of interests should have been conducted. Genocide operates

as the most compelling reason, with the result that no immunity should be accorded. In

addition, the District Court failed to review against the Vienna Convention on Treaties, areview that must have led to the conclusion that according immunity in this case would have

led to a clearly absurd and unreasonable result. Furthermore, the District Court erroneously

failed to take the judgment of the CAVV into consideration in its decision.

Finally, the District Court has based itself on non-existent international practice while such

practice ought not to apply as an absolute norm.

Ground of appeal 8

102. The District Court has erroneously considered under legal consideration 5.14 that:

‘The Court dismisses the argument of the Association et al. that, as evidenced by the

restrictive subordinate clause “as are necessary for the fulfilment of its purposes” in

Article 105 paragraph 1 of the UN Charter, the immunity of the UN only exists in those

instances in which the domestic court addressed – in this case, a court in the Netherlands –

actually considers the allegedly culpable acts and omissions of the UN as “necessary”. In




view of, inter alia, the manner in which the norm of Article 105 paragraph 1 of the UN

Charter, was detailed in the Convention, it is in principle not at the discretion of a

national court to give its opinion on the “necessity” of the UN actions within the functional

framework described 5.12. A comprehensive, “full” review on the merits is also contrary

to the ratio of the immunity of the UN as enshrined in international law. The Court

subscribes to the State’s assertion that also for this reason domestic courts should assess

the acts and omissions of UN bodies on missions such as the one in Bosnia-Herzegovina only

with the greatest caution and restraint. It is very likely that any more far-reaching review

would have huge consequences for the Security Council’s decision-making on similar peace-

keeping missions.’


103. Legal consideration 5.14 elaborates on legal consideration 5.12 of the District Court. It was

raised frequently in the ground of appeal developed in response to legal consideration 5.12

that the review standard should be whether the immunity claimed is necessary for the

fulfilment of the purposes set out in Article 1 of the UN Charter. The United Nations were in

no sense impeded in carrying out their duties by the fact that an independent court

reviewed ex post facto the contested conduct of the United Nations. The Association et al.

refers in this context also to Section 29 of the Convention, which prescribes a legal remedy.

It follows from that that it was foreseeable and not contrary to legal certainty that the

conduct of the UN would be reviewed by an independent court.

104. The District Court erroneously held that the Association et al. would argue that the Court

petitioned must review whether the disputed conduct was actually necessary. The

Association et al. has not argued that (as a result of which the view of the District Court is

erroneous) and that is also not the position at law. The Association et al. argued that

immunity exists insofar as a functional necessity for it exists. It is not the conduct itself but

the immunity for that conduct that must be necessary. The legal basis for such a review

arises from Articles 1 and 105 paragraph 1 of the UN Charter. It is the necessity for

immunity that should have been the issue not the necessity for the conduct.




105. The District Court referred under legal consideration 5.14 also to the effect of Article 105

paragraph 1 of the UN Charter, to the Convention and the reason for the immunity of the

United Nations entrenched in international law. It was raised frequently above that the

Convention is subordinate to the UN Charter. That is expressly stated indeed in Article 103

of the UN Charter. Where the District Court states that Article 105 paragraph 1 of the UN

Charter is at odds with the Convention, the District Court had the opportunity on the basis

of Article 103 of the UN Charter to allow the provisions of Article 105 of the UN Charter to

prevail. It remains unclear from the grounds of the District Court why more weight should

be given to international practice (for that matter incorrectly outlined by the District Court)

and the Convention than to the express purposes of the United Nations set out in Article 1 of

the UN Charter. On top of that the Convention under Section 29 provides the possibility to

bring an action against the United Nations. There is, accordingly, an independent review

actually built into the system of international law for the purpose of judging the conduct of

the United Nations. The national court gets a role in this case because the United Nations

failed for more than 60 years in their express international obligation to create a legal

remedy. The European Court of Justice – as will be raised again under ground of appeal 14 –

also has determined that the court must always take fundamental rights into account and

that there exists no priority for rules of the UN (ECJ EC, dated 3 September 2008, Case C-

415/05 P, Al Barakaat International Foundation against Council of the European Community

and Commission of the European Communities).

That entails that the District Court can and must review the immunity against fundamental

human rights.

106. The District Court considered under legal consideration 5.14 that a substantive, ‘full’ review

(in the light of Article 105 paragraph 1 of the UN Charter) would be contrary to the rationale

of the immunity entrenched in international law. That consideration does not accord with

the judgment of the Court of Justice just cited. The Association et al. affirm their position

that they recognize in principle the right to functional immunity. It is part of international

law that this immunity is limited by the necessity for immunity in the exercise of the duties

of the United Nations. The immunity is subordinate to the purposes of the UN. The right of

access to the Court was cited as a human right, a right that arises from Article 6 ECHR. The

Association et al. will return to that in a seperate ground of appeal (ground of appeal 14).




107. The District Court endorses also the proposition of the State of the Netherlands that the

District Court should judge the conduct of UN organs on missions such as that in Bosnia-

Herzegovina with the greatest caution and restraint. Quite apart from the question whether

that is a proper norm with which to judge the conduct of the United Nations, the District

Court fails to give a judgment in regard to these frameworks. The District Court gave

absolutely no judgment on the mission in question whether or not with caution or restraint

or both. The District Court certainly did hold that it was absolutely not entitled to give any

judgment on such missions. The grounds of the District Court are thus in conflict with its

decision.

108. Finally, the District Court considered under legal consideration 5.14 that it was entirely

credible that a more far-reaching review would have huge consequences for the decision-

making of the Security Council in respect of similar peace-keeping missions. The District

Court apparently attached considerable value to this determination but without furnishing

any grounds for it. The consideration is thus insufficiently reasoned. In addition, the

Association et al. makes the following three remarks on the consideration by the Court.

109. First, the Association et al. notes that this is a political observation not a legal

consideration. It would be manifestly politically undesirable should the United Nations have

to appear before the court in the Netherlands under the gaze of the world. There is the

appearance that the entire judgment of the District Court is ultimately oriented towards

that political end.

The Association et al. can offer no defence against such a political judgment and points out

that the law should be derived from legal sources and not from political reasons. Secondly,

the Association et al. points out that the allegedly culpable conduct does not relate to the

decision-making in the Security Council but rather to the implementation of those decisions

as a result of which – even in the view of the United Nations itself – grave errors were made.

Those errors have had the most serious possible consequences for those whom the Security

Council intended to protect. The result was the first genocide within Europe since the

Second World War. Thirdly, it must be questioned whether the proposition that the taking of

jurisdiction by the national court would have huge consequences for the decision-making of

the Security Council is indeed a proper basis for judgment. If the commission of genocide in

the Srebrenica Safe Area has not yet had such huge consequences then it is all the more




necessary that change is there effectuated. The UN and the State of the Netherlands assert

in the researches financed by them (UN Report and NIOD Report) that lessons have been

learned from their errors. The Association et al. repeats that what is at issue here are not

the decisions themselves but the implementation thereof. It is unacceptable that the United

Nations should be the only organisation in the world that is not subject to judicial review for

any instance of unlawful conduct, including permitting the commission of genocide. Finally,

the Association et al. points out once more that Section 29 of the Convention provides for a

review by an independent court. The manifestly so undesirable influencing assumed by the

District Court is thus already provided for in the Convention. The Association et al. merely

claims what is already obligatory under international law.

Ground of appeal 9

110. The District Court erroneously held under legal consideration 5.15 that:

‘Neither does the available, but scant, jurisprudence about the scope of the norm of article

105 paragraph 1 of the UN Charter afford grounds for the conclusion that a national court,

if and insofar as it has scope for review, can proceed in any other way than with theutmost reticence.

In its Advisory Opinion of April 29, 1999 on the immunity of a UN worker the International

Court of Justice rules that possible wrongful acts committed by the UN are not open to

assessment by national courts, but should take place in the context of specific dispute

settlement as provided for in Article VIII, paragraph 29 of the Convention (Difference

Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on

Human Rights, Advisory Opinion, I.C.J. 1999, p. 62, paragraph 66). There are no legal

grounds for the assertion that the lack of an adequate provision within the meaning of

Article VIII, paragraph 29 warrants any infringement of the principal rule of Article 105

paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue in this case

and of (2) the question what scope for review the court would have had.’





111. In legal consideration 5.15 the District Court intended to address the available caselaw on

the scope of Article 105 paragraph 1 of the UN Charter. The District Court actually failed to

address the most important relevant case. In its discussion of the Advisory Opinion of the ICJ

referred to several times above the District Court passed over the essence of that judgment.

The explanation to this ground of appeal will clarify various points. The Association et al.

will also deal with other relevant caselaw and the Report of the Dutch Advisory Commission

on Issues arising under Public International Law (CAVV).

112. As was said above, the Association et al. is surprised that the District Court failed to address

the Manderlier Case cited above. That is the only case that concerns the immunity of the

UN. The Manderlier Case is discussed extensively above and entails that the Court now has

jurisdiction to hear an action brought against the United Nations. Moreover, the facts in the

present case, much more so than in the Manderlier Case, provide cause to assume that

jurisdiction.

113. The District Court concluded under legal consideration 5.15 that on the basis of the Advisory

Opinion of the ICJ it should proceed with the utmost reticence. That is an erroneous

conclusion to be drawn from the Advisory Opinion.

Even if that conclusion were to be correct, it still holds that a review done with the utmost

reticence is something entirely different from no review. The District Court thus erroneously

failed to conduct any review and assumed absolute immunity.

114. Legal consideration 66 of the Advisory Opinion cited by the District Court does not address

the essence of that judgment. In that legal consideration the ICJ referred to Section 29 of

the Convention. It is not disputed that in the present case no legal remedy within the

meaning of Section 29 was available. The ICJ in the Advisory Opinion did not address the

question what is the law if – as in the present case – a mode of settlement within the

meaning of Section 29 of the Convention is absent.




115. It is also incomprehensible that the District Court failed to address the propositions of the

Association et al. regarding the Advisory Opinion. Thus the District Court failed to address

the judgment of the ICJ that the immunity of the UN can yield. The scope of immunity is

expressed more clearly under number 61 of the Advisory Opinion:

‘When national courts are seised of a case in which the immunity of a United Nations agent

is in issue, they should immediately be notified of any finding by the Secretary-General

concerning that immunity. That finding, and its documentary expression, creates a

presumption which can only be set aside for the most compelling reasons and is thus to be

given the greatest weight by national courts.’

This confirms that a weighing of interests should be conducted and that the national court –

contrary to what the District Court has held – does clearly have jurisdiction to conduct a

review. As the ICJ in the case against Malaysia has already held that in regard to defamation

compelling reasons can exist to depart from the view of the Secretary-General (regarding

the functioning of an official), that shall without more be the case with genocide. It also

applies that in the present case the Secretary-General has no power to notify a finding and

has indeed not made any finding.

The Association et al. incidentally points out also that it was open to the United Nations,

represented by the Secretary-General, to waive immunity (see numbers 81 through 83).

The Association et al. refers in that context to what the Secretary-General in reaction to the

writ of summons on 8 June 2007 (through his spokeswoman) declared (to be read on the UN

website under the heading ‘Secretary-General fully supports call for justice in Srebrenica

massacres’, see: www.un.org/News/ossg/hilites/hilites_arch_view.asp?HICJID=857):

‘ Asked about a letter sent by the group Women of Srebrenica, the Spokeswoman said she

had just learned that the United Nations had received legal documents relating to the case

and that the survivors of the Srebrenica massacres are absolutely right to demand justice

for the most heinous crimes committed on European soil since World War II. The Secretary-

General joins them in that demand, without reservation, and expresses his deepest

sympathies to them and to the relatives of those brutally executed at Srebrenica, almost

12 years ago. (…)’

The difference between word and deed is certainly remarkable.




116. The District Court considered further under the last sentence of legal consideration 5.15:

‘There are no legal grounds for the assertion that the lack of an adequate provision within

the meaning of article VIII, paragraph 29 warrants any infringement of the principal rule of

Article 105 paragraph 1 of the UN Charter, even irrespective of (1) whether it is at issue in

this case and of (2) the question what scope for testing the court would have had.’

The District Court misunderstood, first, that what was at issue was not an encroachment on

Article 105 paragraph 1 of the UN Charter, but an application of that Article. As was

discussed above, Article 105 paragraph 1 provides only a limited immunity and a review is

allowed. Secondly, the fact that the UN has provided no access to justice within the

meaning of Section 29 provides sufficient legal cause to give access to national court. The

District Court incomprehensibly simply ignores the fact that the United Nations has already

failed to meet its international obligation for 60 years. Articles 31 and 32 of the Vienna

Convention on Treaties also deserve to be cited here, articles that provide that there should

be an ‘interpretation’ if application of any article leads to a result that is unclear or absurd.

As was said above, the District Court evidenced no proper understanding of these Articles.

117. The District Court did not address the caselaw regarding the immunity of international

organisations cited by the Association et al. That is incomprehensible. After all, the caselaw

in question certainly justifies the conclusion that under certain circumstances the immunity

of an international organisation should yield to the interests of the litigant. The Association

et al. will now address this caselaw.

Caselaw on the immunity of international organisations

118. The Hoge Raad recognized already in 1985 (HR 20 December 1985, NJ 1986, 438

(Spanish/Iran-United States Claims Tribunal) that in the absence of an alternative and

effective legal remedy, the immunity of the international organisation should yield before

the interests of the litigant. In that case immunity was accorded only because the

international organisation in question provided an alternative legal remedy (see legal




consideration 3.3.6). Under legal consideration 3.3.2 the Hoge Raad held with reference to

an employee of an international organisation proceeding against the employer:

‘The question whether, and if so in which cases an appeal to the privilege of immunity

from jurisdiction by an international organisation must be upheld is principally of

importance in the light of – and arises in these proceedings exclusively in relation to – the

jurisdiction of the court of the host country. Giving an answer to this question requires in

principle a weighing of two interests, each weighty but conflicting: on one side, the

interest of the international organisation that under all circumstances the independent and

unimpeded performance of its tasks is guaranteed; on the other, the interest of the other

party that its dispute with the international organisation will be heard and resolved by an

independent court.’

It was also expressly held in the case cited that the fact that the allegedly culpable conduct

fell within the functional immunity was not an obstacle to the weighing of interests referred

to above (see legal consideration 3.3.5).

Even if the District Court were to hold that the allegedly culpable conduct of the UN fell

within the functional immunity, the right of access to the Court must be weighed against

that immunity.

119. The Association et al. also finds support for its propositions in the caselaw of the District

Court The Hague, 28 November 2001, NJkort 2002, 1. The District Court held that it had

jurisdiction to hear a dispute where an international organisation claimed immunity but no

alternative effective legal remedy was available. That case concerned a labour dispute

between an international organisation (ISNAR) and an employee (Baur). Such a dispute falls

(naturally) within the functional immunity. The District Court also established that under

legal consideration 5.3. ISNAR had asserted in the proceedings that its staff regulations

provided an alternative legal remedy. That assertion was dismissed by the District Court

(see legal consideration 5.10):

‘Baur et al. have argued that the proceedings referred to in Article 16 of the staff

regulations do not in this present case constitute an effective judicial process and offer

insufficient protection. Reference was made in particular to the absence of information

on this judicial process or to time periods and to the fact that there has been no

implementation of the “regulations” within ISNAR itself: the ISNAR Appeal




Committee does not exist and nor does the Chairperson thereof. ISNAR has not dealt

substantively with this point but has merely claimed that it is not significant to the

question whether immunity is accorded to ISNAR. The District Court has another view

on this. Indeed, every person has a right – also under international law – to an

effective judicial process in cases such the present. Should it emerge therefore that the

judicial process under the staff regulations is not in this specific case effective, then a

duty arises upon the Netherlands court.’

120. It could be deduced from the opening of legal consideration 5.15 that the District Court was

discussing only the caselaw on the norm of Article 105 paragraph 1 of the UN Charter. It

emerges from the remaining of legal consideration 5.15 that actually the District Court was

dealing more broadly with the norm of Article 105 and also addressed the question what

would be the legal basis for an encroachment on Article 105 paragraph 1 of the UN Charter.

Before dealing with other legal sources than the caselaw the Association et al. repeats that

it holds the view primarily that there is here no issue of any encroachment on Article 105

paragraph 1 of the UN Charter, only of an application of it.

As was said above, the immunity extends no further than the functional necessity for it and

there is here no issue of any such functional necessity, alternatively that such functional

immunity should yield in the context of a weighing of interests.

Advisory Commission on Issues arising under International Law (CAVV)

121. The Association et al. again recalled in the writ of summons (under point 452) that the

Advisory Commission on Issues arising under Public International Law (CAVV) set up by the

State of the Netherlands has held that in the absence of any other legal remedy, the right of

access to the court is more important than the claim to immunity. The CAVV is the most

important advisory body to the State of the Netherlands on issues arising in the field of

international law. The CAVV wrote in Article 4.5.2 of its Report no. 13 that the national

court:

‘(…) should proceed to a prima facie investigation in the light of international legal norms

of the availibility of adequate internal legal remedies that are available within an

international organisation to the aggrieved party. In the event of a negative result it is




desirable that national courts do not accord immunity and proceed to settlement of the

dispute at hand .’

122. In the meantime, it is accepted in the most recent literature that the immunity of

international organisations, such as the UN, is no (longer) self-evident. The District Court

also erroneously ignored this literature. The Association et al. refers to A. Reinisch, in R.

Hofmann e.a., Die Rechtskontrolle von Organen der stateengemeinschaft, 2007, page 43).

123. It is confirmed also in other literature that the Netherlands Court should check whether

upon establishing the functional immunity there would exist an alternative and effective

legal remedy available to the litigant. If that is not the case, no immunity should be

accorded to the international organisation (see Kooijmans, op. cit., page 175). K. Wellens

has expressed the same view in publication, ‘Fragmentation of international law and

establishing an accountability regime for international organizations: The role of the

judiciary in closing the gap’ (see Michigan Journal of International 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 of immunity (K. Wellens, op. cit., page 18):

‘(…) access should prevail over immunity if no legal remedy is available.’

Finally, the Association et al. refers to Van der Plas, op. cit., page 265:

‘More to the point it follows from the caselaw of the ECHR that the right of access impedes

any according of immunity where the plaintiff would otherwise have no effective legal

remedy. The curtailment of Article 6 paragraph 1 ECHR would be disproportionate in such a

case, alternatively would impugn the essence of the right of the plaintiff.’

Ground of appeal 10


‘Now that the interpretation Article 105 of the UN Charter does not offer grounds for

restricting the immunity, the question arises whether other international-law norms –

outside the UN frame of reference – prompt a different opinion. This enquiry into




conflicting norms is necessary because there are insufficient grounds for accepting a full

and unconditional priority of international-law obligations of the State under the UN

Charter over other international-law obligations of the State. The rule of Article 103 of the

UN Charter invoked by the State does not always and without more bring relief in the event

of conflicting obligations of a peremptory character (ius cogens) or conflicting human rights

obligations of an international customary law nature.’


125. The opening sentence of legal consideration 5.16 is a summary of earlier legal

considerations against which the Association et al. has directed separate grounds of appeal.

The incorrectness of earlier legal considerations is also the incorrectness of the opening

sentence of legal consideration 5.16. Beside that the following applies.

It appears from the above grounds of appeal and the explanation thereto that the District

Court has erroneously left essential provisions of the UN Charter, the Vienna Convention on

Treaties, caselaw and literature out of consideration in its judgment. The District Court

should have reviewed already in the framework of the interpretation of Article 105

paragraph 1 of the UN Charter whether that interpretation did justice to, for example,

Article 6 ECHR. It is after all not imaginable that the UN Charter would have to be

interpreted as being in conflict with that Article.

Indeed, Article 105 paragraph 1 of the UN Charter expressly refers to the purposes of the

United Nations, which Article specifies the protection of human rights as a purpose of the

United Nations. Article 105 paragraph 1 of the UN Charter is merely a means for

implementation of those purposes. Only where immunity would constitute a purpose in itself– a notion that is not supported by either the text of the import of Article 1 of the UN

Charter – should there be room to weigh immunity against the norms of Article 6 ECHR.

126. The District Court correctly observed that it was not self-evident that the UN Charter has

priority over other treaty obligations or human rights. The Association et al. notes in that

context that it manifests a much too restrictive interpretation of one’s task that the State

of the Netherlands (and with it: its body the Public Prosecutor’s Department) showed no




evidence of the necessity of conducting a balancing between different international

obligations. The State of the Netherlands apparently found it necessary only to plead the

immunity of the UN on the ground of Section 2 of the Convention. The State of the

Netherlands was unconcerned by all those other conflicting treaty norms. It cannot be

approved that the State of the Netherlands has focussed on a single alleged international

obligation. Human rights played no role for the State of the Netherlands. The District Court

should have corrected that position of the State of the Netherlands.

Ground of appeal 11


‘The Genocide Convention comprises as principal rule the penalization of genocide. From

Article 1 of this Convention it is clear that theContracting Parties, including the

Netherlands, undertake to prevent genocide – and therefore not to commit the crime

themselves – as well as to punish it.’

The District Court also erroneously considered under legal consideration 5.19 that:

‘Neither the text of the Genocide Convention or any other treaty, nor international

customary law or the practice of states offer scope in this respect for the obligations of a

Netherlands court to enforce the norms of the Genocide Convention by means of a civil

action. The Contracting Parties are obliged to punish all acts defined by this Convention as

genocide within the boundaries set in Article VI of the Convention. Also, as stated before,

the states are bound to prevent genocide and therefore to refrain from committing it

themselves. The states are bound also clearly to set out obligations on the extradition of

suspects of genocide, but the Convention does not provide for (any obligation pertaining

to) the enforcement of the norms of enforcing the prohibition on genocide via a civil law

action. It should be noted here that the International Court of Justice ruled in 2007 about

the substance of obligations of parties to the Genocide Convention and in that context

omitted to discuss any obligation by states to enforce the Convention by means of civil law

actions (ruling of February 26, 2007 on the application of the Convention on the Prevention




and Punishment of the Crime of Genocide in the case of Bosnia and Herzegovina v. Serbia

and Montenegro, paragraphs 155-179).’


Obligation to prevent genocide

128. The UN considered in Resolution 96 (1) of 11 December 1946 that genocide is a crime under

international law, contrary to the spirit and the purposes of the United Nations and

condemned by the civilized world.

129. Article 1 of the Genocide Convention reads:

‘The Contracting Parties confirm that genocide, whether committed in time of peace or in

time of war, is a crime under international law which they undertake to prevent and to

punish.’

The determination by the District Court that the fundamental principle of the Genocide

Convention was the penalization of genocide is erroneous given the text of Article 1 of the

Genocide Convention. The prevention of genocide is at least as important, if not more

important than its punishment. Punishing genocide does not return lost lives to an individual

or a group of victims of genocide whereas they do retain their lives if genocide is prevented.

The Genocide Convention lists in that connection first the prevention and then the

punishment. The ruling of the ICJ in The Hague of 26 February 2007 (Bosnia-

Herzegovina/Serbia and Montenegro) is also of importance here. The Association et al. will

deal further with that ruling below. Before that the Association et al. notes by way of

illustration that also here the ICJ under legal consideration 161 of its ruling refers to an

Advisory Opinion of the ICJ from 1951, in which was again established that:

‘The Convention was manifestly adopted for a purely humanitarian and civilizing purpose

(….) it is indeed difficult to imagine a convention that might have this dual character to a

greater degree, since its object on the one hand is to safeguard the very existence of

certain human groups and on the other to confirm and endorse the most elementary

principles of morality.’




The whole point of the Genocide Convention is the purpose of protecting people and laying

down elementary norms and not, as the District Court held, the punishment of genocide.

130. After the ICJ ruled that genocide had been committed in Srebrenica, the ICJ followed that

in its ruling of 26 February 2007 with the determination that the prevention of genocide

within the meaning of Article 1 of the Genocide Convention is an autonomous obligation. It

is not an introduction to the more specific obligations contained in the Genocide

Convention. The ICJ ruled on the obligation within the meaning of Article I of the Genocide

Convention as follows (see legal consideration 155 et seq., with the conclusion under legal

consideration 165):

‘(…) confirm that Article I does impose distinct obligations over and above those imposed

by other Articles of the Convention. In particular, the Contracting Parties have a direct

obligation to prevent genocide.’

131. Article VIII of the Genocide Convention provides that any Contracting Party to the

Convention may call upon the UN in order to prevent and suppress genocide. The duty to

prevent genocide within the meaning of Article I of the Genocide Convention entails muchmore than merely calling upon the UN. The ICJ in its ruling of 26 February 2007 laid down

that the Contracting Parties to the Convention are under the obligation to take all necessary

measures to prevent genocide, even where the UN has already been involved (see legal

consideration 427).

132. The ICJ ruled further that the obligation to prevent genocide is not a result obligation but

an obligation of conduct. Nonetheless, that obligation of conduct goes very far. All possible

measures must be taken to prevent genocide. A State is not responsible because the desired

result is not achieved but is certainly responsible if all measures that lay in the power of

that State were not taken. The violation of Article I of the Genocide Convention (idem) also

occurs even if the deployment by the State of all the means available could not have

prevented the genocide (see legal consideration 430 of the ICJ ruling dated 26 February

2007):

‘(…) it is clear that the obligation in question is one of conduct and not one of result, in the

sense that a State cannot be under an obligation to succeed, whatever the circumstances,




in preventing the commission of genocide: the obligation of States parties is rather to

employ all means reasonably available to them, so as to prevent genocide so far as

possible. A State does not incur responsibility simply because the desired result is not

achieved; responsibility is however incurred if the State manifestly failed to take all

measures to prevent genocide which were within its power, and which might have

contributed to preventing the genocide. In this area the notion of “due diligence”, which

calls for an assessment in concreto, is of critical importance. Various parameters operate

when assessing whether a State has duly discharged the obligation concerned. The first,

which varies greatly from one State to another, is clearly the capacity to influence

effectively the action of persons likely to commit, or already committing, genocide.

This capacity itself depends, among other things, on the geographical distance of the State

concerned from the scene of the events, and on the strength of the political links, as well

as links of all other kinds, between the authorities of that State and the main actors in the

events. The State’s capacity to influence must also be assessed by legal criteria, since it is

clear that every State may only act within the limits permitted by international law; seen

thus, a State’s capacity to influence may vary depending on its particular legal position vis-

à-vis the situations and persons facing the danger, or the reality of genocide. On the other

hand, it is irrelevant whether the State whose responsibility is in issue claims, or even

proves, that even if it had employed all means reasonably at its disposal, they would nothave sufficed to prevent the commission of genocide. As well as being generally difficult to

prove, this is irrelevant to the breach of the obligation of conduct in question, the more so

since the possibility remains that the combined efforts of several States, each complying

with its obligation to prevent, might have achieved the result – averting the commission of

genocide – which the efforts of only one State were insufficient to produce.’

133. The Association et al. makes the incidental comment that the UN and the State of the

Netherlands breached their obligation to deploy all means to prevent genocide. That

appears from the facts set out in the originating writ of summons. The State of the

Netherlands despatched Dutchbat when it was inadequately armed and trained. The

armament that was sent with the troops was not deployed when that was required. The UN

and the State of the Netherlands should have protected the population in accordance with

the agreements made and undertakings given. The Close Air Support was not deployed,

alternatively not deployed in good time and adequately. Furthermore, the eventual air

attack of 11 July 1995 (the day that the Srebrenica Safe Area would fall) was recalled

through the fault of the State of the Netherlands. As a result, everything was not done to




prevent the genocide. Worse still, with that the State of the Netherlands actively botched

the little military action that was undertaken to prevent genocide. Additionally, the

observed war crimes should have been reported, which could have saved many lives. The

United Nations and the State of the Netherlands also took it upon themselves to play an

active role in separating the men and the women. It is here repeated that the ICJ has ruled

that for the violation of Article I of the Genocide Convention it is not relevant whether the

employment of all available measures would have prevented the genocide. The Association

et al. here also records again that numerous other violations of human rights occurred. The

Association et al. refers to points 412 through 417 of the originating writ of summons.

134. In reviewing the question whether there was violation of Article I of the Genocide

Convention it is not relevant that the allegedly culpable conduct (alternatively, the

allegedly culpable omissions) has (have) occurred prior to the genocide that was committed

from 13 July 1995. The prevention of genocide is, after all, by definition conduct that occurs

prior to the commission of the genocide. The ICJ in its ruling of 26 February 2007 held on

this that (see legal consideration 431):

‘(…) a State can be held responsible for breaching the obligation to prevent genocide only if

genocide was actually committed. (…) This obviously does not mean that the obligation to prevent genocide only comes into being when perpetration of genocide commences; that

would be absurd, since the whole point of the obligation is to prevent, or attempt to

prevent, the occurrence of the act. In fact, a State’s obligation to prevent, and the

corresponding duty to act, arise at the instant that the State learns of, or should normally

have learned of, the existence of a serious risk that genocide will be committed. From that

moment onwards, if the State has available to it means likely to have a deterrent effect on

those suspected of preparing genocide, or reasonably suspected of harboring specific intent

(dolus specialis), it is under a duty to make such use of these means as the circumstances

permit.’

135. The above ruling means that the UN and the State of the Netherlands had to employ all

available means from the moment that they knew, or should reasonably have known that

genocide would occur. As has been discussed above and as will be addressed again below,

the UN and the State of the Netherlands were from 1993 already aware of the threatened

genocide. Furthermore, the UN and the State of the Netherlands knew that the Bosnian

Serbs were continuing to attack the Safe Area and that the objective of the Bosnian Serbs




was the ethnic cleansing of this area. The facts and circumstances set out above that were

played out under the eyes of Dutchbat were an unmistakable signal of what would occur.

The majority of the murders occurred in the days following the fall of the Safe Area.

136. The following shows that the UN and the State of the Netherlands had specific knowledge

that genocide threatened. The UN Report of 30 April 1993 (UN, S/25700, Report of the

Security Council established pursuant to resolution 819 (1993)) contains the following:

‘(14) UNPROFOR had participated actively in the drafting and the process of convincing

the Bosnian Commander to sign the agreement (addition of the attorney: demilitarisationagreement of 18 April 1993). The alternative could have been a massacre of 25,000

people.

(…)

(17) There is no doubt that had this agreement not been reached, most probably a

massacre would have taken place, which justifies the efforts of the UNPROFOR

Commander.

(…)

(19) During the Mission’s briefing at Srebrenica, the representative of ICRC informed it

that the Serbs were not allowing surgeons to enter the city, in direct violation of

international humanitarian law. There were many wounded requiring surgery. The only

surgeon in the city has not been authorized to stay by the Serbs. To impede medical

assistance is a crime of genocide. This action, together with the cutting of the water

supply and electricity, have put into effect a slow-motion process of genocide.

(…)

(27) (g) (…) The attitude of defiance of the Serbs towards the United Nations in general is

a matter that should concern the Council. The Serbs obviously have little respect for

UNPROFOR’s authority.’




137. It was known at the UN – and by the State of the Netherlands – that a genocide threatened

in Srebrenica even before Dutchbat was despatched to Srebrenica. The UN expected already

in 1993 that genocide would be committed in Srebrenica. The purpose of setting up the

Srebrenica Safe Area was precisely the prevention of genocide. Moreover, as appears from

the UN Report of 30 April 1993 cited above, the Bosnian Serbs had no respect at that time

for the UN and their resolutions. The UN and the State of the Netherlands accordingly knew

already in 1993 that they could not trust that the Bosnian Serbs would respect the Safe

Area. They knew that the inhabitants of the Safe Area needed protection against the

threatened genocide.

138. The ICJ also held in its ruling of 26 February 2007, under legal consideration 438, that theclimate of ingrained hate between the population groups was known and that:

‘(…) given all the international concern about what looked likely to happen at Srebrenica,

(…), it must have been clear that there was a serious risk of genocide in Srebrenica.’

139. Genocide occurred in Srebrenica and the UN and the State of the Netherlands did not do

enough to prevent that genocide despite the knowledge of the UN and the State of the

Netherlands that such genocide threatened. As a result, the UN and the State of the

Netherlands have breached international law. The United Nations and the State of the

Netherlands indeed acted contrary to the principal rule of the Genocide Convention,

namely, the prevention of genocide. That is an entirely different principal rule than that

taken by the District Court as a startingpoint, namely, punishment and not oneself

committing genocide.

Enforcing the norm of the Genocide Convention

140. The District Court held under legal consideration 5.19 that neither the GenocideConvention, nor any other treaty, nor customary international law or the practice of states

gave a ground for an obligation on the Netherlands Court to uphold the norms of the

Genocide Convention by way of a civil action.

141. The Association et al. for the moment points out that the reference by the District Court to

customary international law or the practice of states comes across somewhat cynically.

There are no precedents for the present case. A practice can be confirmed only when




similar cases are brought before the court. The caselaw of the European Court of Human

Rights shows very positively that in relatively less serious cases of violations of human

rights, such as acting contrary to the prohibition on torture within the meaning of Article 3

ECHR, enforcement of the norm by way of civil proceedings does occur. The Association et

al. refers to the ruling of the European Court of Human Rights of 21 November 2001 in the

case of Al-Adsani v. the UK (no. 35763/97). The Association et al. will address in detail that

ruling in the context of the following ground of appeal.

In anticipation thereof it is observed that in that case the immunity of the State of Kuwait

was upheld because a legal remedy existed in Kuwait. It was actually self-evident for the

European Court of Human Rights that the prohibition on torture created a directlyenforceable right for the individual citizen.

Enforcement of the norm by the individal

142. The District Court observed that the ICJ in its ruling of 26 February 2007 made no mention

of any obligation on States to enforce the Genocide Convention by way of a civil action.

There was no reason for any such consideration by the ICJ with the result that no

conclusions can be drawn therefrom for the present case. The ruling concerned in fact a

claim by one state against another.

143. Some provisons in treaties give – irrespective of the wording of the provision in question –

the posibility to invoke them directly. In this case it concerns the most important provision

of the most important treaty, namely, the obligation under Article 1 of the Genocide

Convention to use all means to prevent genocide. The Association et al. has the right to sue

the government, a state or the organization that represents all the world’s states in respect

of their obligation under that Article. The obligation to prevent genocide would degenerate

into an empty shell if it were to be dependent on the benevolence of a state to implement

the obligation in question by application to the ICJ. The fact that Bosnia-Herzegovina failed

to apply to the ICJ must not entail that the State of the Netherlands and the United Nations

get away with violation of the principal obligation of the Genocide Convention. It is rather

the (groups of) citizens who rightly should be protected against genocide and not the states

or the UN or both. A personal right in the citizens ensues therefore from the Genocide

Convention.




144. It is established as a result of research by the CAVV and the UN that it is not only states on

both sides that can institute an action on the ground of norms of international law;

individuals also can institute an action against states and the UN on the ground of norms of

international law. The CAVV concluded that an exception exists to the principle that only a

state can institute an action on the ground of international law.

This exception operates in respect of norms of international law that accord direct rights to

individuals under international law. In this category fall, inter alia, norms of human rights

(see CAVV Report, no. 3.5).

145. The UN also appointed independent experts to research the problematic of the

implementation of the rights of the individual. These experts spent fifteen years conducting

this research. During that research Member States of the UN, international organisations and

NGOs were consulted. The research led to the UN Resolution of 16 December 2005 (Number

60/147) ‘Basic Principles and Guidelines on the Right to a Remedy and Reparation for

Victims of Gross Violations of International Human Rights Law and Serious Violations of

International Humanitarian Law’ (hereafter: ‘Basic Principles’). The Basic Principles are

based, inter alia, on Article 8 of the Universal Declaration of Human Rights (UDHR). This

right to an effective legal remedy arises also from Article 6 ECHR (see A. Reinisch, in R.

Hofmann et al., Die Rechtskontrolle von Organen der stateengemeinschaft, 2007, page 85)

and Article 2 paragraph 3 sub a I CCPR.

146. The UN recommends the Member States under Article 2 of the Basic Principles to implement

the directives and to apply them in the caselaw and is formulated as follows:

‘Recommends that States take the Basic Principles and Guidelines into account, promote

respect thereof and bring them to the attention of members of the executive bodies of

government, in particular law enforcement officials and military and security forces,

legislative bodies, the judiciary, victims and their representatives, human rights defenders

and lawyers, the media and the public in general.’

147. With a view to ensuring the implementation of the Basic Principles by the Member States,

Article I, number 2 sub b, c and d of the Basic Principles provides that the Member States of

the UN must ensure under international law that they do the following:




‘(b) Adopting appropriate and effective legislative and administrative procedures and other

appropriate measures that provide fair, effective and prompt access to justice;

(c) Making available adequate, effective, prompt and appropriate remedies, including

reparation, as defined below;

(d) Ensuring that their domestic law provides at least the same level of protection for

victims as that required by their international obligations.’

148. Article II, number 3, under c and d of the Basic Principles lays down the extent of the

obligations of the Member States. The Member States have the obligation to:

‘(c) Provide those who claim to be victims of a human rights or humanitarian law violation

with equal and effective access to justice, as described below, irrespective of who may

ultimately be the bearer of responsibility for the violation;

and

(d) Provide effective remedies to victims, including reparation, as described below.’

149. Article V, number 8 of the Basic Principles defines the concept of victim:

‘(…) victims are persons who individually or collectively suffered harm, including physicalor mental injury, emotional suffering, economic loss or substantial impairment of their

fundamental rights, through acts or omissions that constitute gross violations of

international human rights law, or serious violations of international humanitarian law. (…)

the term “victim” also includes the immediate family or dependants of the direct victim

(…).’

It is incomprehensible that the State of the Netherlands has manifestly shown that it

considers the postulated obligation under section 2 of the Convention so much more

important than these international law and treaty obligations.

150. The six thousand surviving dependants (whose interests are promoted by the Association)

are victims within the meaning of the Basic Principles. As shown above and in the originating

writ of summons at first instance, they, alternatively, their murdered families, are the

victim of gross violations of human rights and of international humanitarian law.




151. The Basic Principles provide that individuals who are the victim of a gross violation of human

rights or of international humanitarian law can enforce their rights equally as a state under

international law. The Member States must ensure that victims have equal access to all

appropriate legal remedies in order to be able to exercise their rights. See Article VIII,

number 12 through 14 of the Basic Principles which provides that:

‘ A victim of a gross violation of international human rights law or of a serious violation of

international humanitarian law shall have equal access to an effective judicial remedy as

provided for under international law. (…) Obligations arising under international law to

secure the right to access justice and fair and impartial proceedings shall be reflected in

domestic laws. To that end, States should:

(…)

(d) Make available all appropriate legal, diplomatic and consular means to ensure that

victims can exercise their rights to remedy for gross violations of international human

rights law or serious violations of international humanitarian law.’

Under Article VIII, number 13 of the Basic Principles a Member State must ensure that not

only individuals but also groups of victim can enforce their rights. The Association

constitutes a group of victims within the meaning of Article VIII number 13 of the Basic

Principles.

152. This case concerns a very large group of victims of gross violations of human rights, such as

the right to life and to humanitarian aid. Moreover, the mandate of the UN included the

protection of human rights. The resolutions adopted by the Security Council ordered the

protection of the Safe Area and of the civilians in that area. Given that the object of the

resolution was the protection of human life, UN Resolutions 836 and 844 also give direct

rights to individuals.

153. Both the CAVV Report and the Basic Principles lead to the result that the Association et al.

can enforce its rights derived from international law before the Netherlands Court. As that

applies to gross violations of human rights, it applies all the more to the violation of the

obligations under the Genocide Convention.

The Association et al. has a claim against the UN and the State of the Netherlands under

international law as the norms of international law that have been breached confer direct

rights on the individual (see CAVV Report, nos. 3.5.1 and 3.5.2).




154. The Basic Principles provide also that victims have a right to compensation where

restoration of the situation prior to the injury-causing facts is not possible. Compensation

can be awarded for, inter alia, physical or mental harm, lost opportunities, including

employment, education and social benefits. Compensation can also be awarded for material

damage and loss of earnings and for moral damage (see Article IX, number 20 of the Basic

Principles). Given the above the UN and the State of the Netherlands should pay

compensation to the Association et al. under international law. A court with jurisdiction is

obviously necessary for that, without which no right can be enforced.

155. In addition to the Basic Principles discussed above the Association et al. refers to Article 93

of the Netherlands Constitution in connection with the possibility as an individual to

entitlement under provisions of international treaties. Article 93 of the Constitution

provides:

‘Provisions of treaties and of resolutions by international institutions, which may be

binding on all persons by virtue of their contents shall become binding after they have been

published.’

This direct applicability of international treaties in the Netherlands legal order is of

importance where the international treaties also contain self-executing provisions. ‘Self-

executing provisions’ are provisions that have binding force on civilians (private persons),

including legal persons under private law (see J.W.A. Fleuren, Tekst & Commentaar,

Grondwet, 2004, Article 93 number 3). Whether an international treaty contains a self-

executing provision is exclusively for the judgment of the Netherlands Court (see F.M.C.

Vlemminx and M.G. Boekhorst, De Grondwet, 2000, Article 93 number 7; J.W.A. Fleuren, op.

cit., number 4 under reference to the relevant Parliamentary papers; P. van Dijk and B.G.

Tahzib in S.A. Riesenfeld and F.M. Abbott, Parliamentary Participation in the Making and

Operation of Treaties, 1994, page 113).

156. The self-executing character of such provisions in international treaties must be tested by

the Netherlands Court as a matter of fact. In the present case the Genocide Convention, the

Geneva Conventions and the ECHR have found their way into the Netherlands legal system

as international treaties via Article 93 of the Netherlands Constitution. The Genocide




Convention and the Geneva Conventions were brought into being precisely to protect

civilian populations, and thus also individual civilians, from outrages. The same applies to

Article 2 paragraph 1 ECHR and Article 6 paragraph 1 of the I CCPR, which primarily concern

the protection of the individual.

157. The fact that the state of Bosnia-Herzegovina could itself also bring claims against the UN

and the State of the Netherlands does not concern the Association et al. in the present

dispute. After all, the state of Bosnia-Herzegovina has in the past fourteen years not

instituted any claim and has to the present given no indication of any such intention.

158. Besides a direct right under the treaties cited above it is also the case that the treaties in

question also in part determine what is unlawful and what is not, and thus influence the

norm of Article 6:162 paragraph 2 BW . Article 6:162 paragraph 2 BW reads:

‘The violation of a right and an act or omission violating a statutory duty or a rule of

unwritten law pertaining to proper social conduct shall be deemed to be an unlawful act

unless there exists a ground of justification.’

It was set out repeatedly above how the State of the Netherlands and the United Nations

violated the rights of the Association et al. (alternatively, the rights of the persons whose

interests the Association promotes). The District Court failed to address the fact that a

failure to prevent genocide is without doubt not something that pertains to proper social

conduct. We are concerned here after all with the military under a particular obligation to

protect the population of the Safe Area.

159. In the light of Article 6:162 paragraph 2 BW (Dutch Civil Code) it is of concern that criminal

law provisions or provisions in treaties that impose specific obligations of states are virtually

never incorporated literally into the civil code. That does not nullify the fact that conduct

contrary to criminal law provisions can certainly give rise to grounds of liability under civil

law. The Burgerlijk Wetboek (Civil Code of the Netherlands) does not prohibit causing harm

to another. Causing harm to another is however unlawful under the civil law and gives rise

to an obligation to provide compensation therefor. Unlawfulness leads to liability. What is

unlawful is determined by acting or failing to act in violation of a statutory duty or a rule of




unwritten law pertaining to proper social conduct. The Genocide Convention is certainly of

the greatest possible importance for the interpretation of those norms.

Ground of appeal 12


‘In its judgment of November 21, 2001 the European Court of Human Rights ruled in the

case of Al-Adsani v. the UK (No. 35763/97) that there is no scope for any encroachment on

the immunity that in principle exists of a national state, in that case Koewait, in the

context of a civil action alleging violation of the prohibition on torture laid down in

Article 3 ECHR. As there is no evidence that the European Court for Human Rights

subsequently departed from this line the Court concludes that there is no generally

accepted norm in international-law practice on the basis of which current immunities allow

exception, within the framework of enforcement in civil law, of the norms of ius cogens,

like the prohibitions on genocide and torture. That the issue in this case was the

relationship between state immunity and the prohibition on torture and not the

relationship between the immunity of international organizations and the prohibition on

genocide does not lead to a different opinion in the present case. Just as there is no basis

for a hierarchy between different types of immunity, so there are no grounds for a

hierarchy between different norms of ius cogens.’


161. It is incomprehensible that the District Court cites a case that concerns the immunity of a

state in support of its decision that the United Nations enjoys immunity. The District Court

had indeed already held under legal consideration 5.11 that the immunity of states differed

strongly from the immunity of international organisations and that no form of hierarchy

existed between the two forms of immunity. Given the correctness of that determination

can the judgment that a state also enjoys immunity in the event of violation of ius cogens

not also draw the conclusion that the same would apply to an international organisation.

Quite apart from the fact that the District Court incorrectly and incompletely interprets the




ruling of the European Court of Human Rights in Al-Adsani (to which the Association et al.

will return below), it is precisely on the point of access to law that there emerges now a

fundamental divergence between the immunity of states and that of international

organisations. That divergence resides in the fact that the court of the state against which

an action is brought (in the case of Al-Adsani/Koewait) has jurisdiction. In the case of an

international organisation there is no such national court with jurisdiction and that is why

international organisations have an obligation under international law to establish a legal

remedy. In the case of the United Nations that obligation is laid down in section 29 of the

Convention. Where another court has jurisdiction, a court may more quickly come to the

judgment that it lacks jurisdiction (see: Van der Plas, De taak van the Court en het IPR, p.

265). The immunity of a state can in such case be maintained.

162. There are certain rules of international law that are so important that in the event of a

conflict between them other rules of international law have to yield. This higher form of law

is termed ius cogens. The District Court gives the appearance erroneously and without

substantiation in law that immunity should be a form of ius cogens. The District Court held

that there was no ground to uphold a hierarchy between different types of ius cogens. The

District Court thereby implied that as a result immunity should be ius cogens. That

implication is unsupportable on the basis of literature and caselaw.

163. The prohibition on genocide is ius cogens (see J.A. Frowein, Encyclopedia of Public

International Law, Volume Three, 1997, page 67). The Association et al. is conscious that

the UN did not itself commit the genocide. The issue in this regard is the question whether

the UN failed in its obligation under the Genocide Convention to prevent genocide.

There is besides an issue of ius cogens with the violation of other human rights, such as

torture, murder and rape. It was foreseeable in July 1995 that all those human rights would

be violated when at that time the UN failed in its undertaking to provide protection (seefurther numbers 408 through 411 in the writ of summons and the sources cited there).

164. For a clear understanding of the issues the Association et al. will address more fully the

judgment of the European Court of Human Rights in the Al-Adsani Case, a case that also

relates to the interpretation of ius cogens. The plaintiff was a citizen of the State of

Koewait who instituted an action for damages in the United Kingdom against the State of

Koewait alleging responsibility on the part of the State of Koewait for his torture and

claiming damages for the resulting physical and emotional injuries. The legal issue before




the European Court of Human Rights was whether the English court was correct in holding

that immunity was attached to the State of Koewait.

165. What is remarkable is that the European Court of Human Rights dismissed the appeal to

Article 6 ECHR and upheld the immunity of the State of Koewait by the smallest possible

majority of the judges, namely, nine against eight. That indicates already that the absolute

character of the immunity of states is debatable under certain circumstances.

166. That statement is illustrated by the various dissenting opinions in the judgment. Before

proceeding deeper into those the Association et al. again presents the ratio decidendi of the

decision (see legal consideration 66):

‘The Court, while noting the growing recognition of the overriding importance of the

prohibition of torture, does not accordingly find it established that there is yet acceptance

in international law of the proposition that States are not entitled to immunity in respect

of civil claims for damages for alleged torture committed outside the forum State.’

The use of two words in this ratio is noticeable. First, the word, ‘yet’, whereby the

European Court of Human Rights indicates that the passage of time might or even will lead

to another view. Secondly, the word, ‘States’ in relation to the fact that immunity remains

limited to the court outside the territory of state in question.

Al-Adsani could have sued Koewait in that country, in which event Koewait could not have

invoked immunity. The Association et al., as already said, fails to perceive any such

alternative in this case.

167. The dissenting opinions make it abundantly clear that in certain cases the granting of

immunity for states is under considerable pressure and should yield to the interests of the

citizen whose rights have been violated. In the dissenting opinion of Judge Loucaides it was

said:

‘In view of the absolute nature of torture it would be a travesty of law to allow exceptions

in respect of civil liability by permitting the concept of State immunity to be relied on

successfully against a claim for compensation by any victim of torture. The rationale

behind the principle of international law that those responsible for atrocious acts of




torture must be accountable is not based solely on the objectives of criminal law. It is

equally valid to any legal liability whatsoever.’

(…)

‘In my opinion, they (addition by counsel: the relevant immunities) are incompatible with

Article 6 § 1 in all those cases where their application is automatic without a balancing of

the incompeting interests as explained above.’

168. The joint dissenting opinion of six other judges of the European Court of Human Rights

(including the President) provide a clear insight into the legal reasoning that should be

followed in respect of states. All the judges agreed that the prohibition on torture is ius

cogens (see legal considerations 60-61). In other words, this rule is a peremptory rule of

international law (see Kooijmans, op. cit., page 18). According to the dissenting opinion, in

the event of conflict between a rule that is ius cogens and another rule of international law

(such as immunity), that other rule must yield (see legal consideration 1 of the dissenting

opinion):

‘In the event of a conflict between a jus cogens rule and any other rule of international

law, the former prevails. The consequence of such prevalence is that the conflicting rule is

null and void, or, in any event, does not produce legal effects which are in contradictionwith the content of the peremptory rule.’

169. The following conclusion follows then from this rule of precedence (see legal consideration 3

of the dissenting opinion):

‘The acceptance therefore of the jus cogens nature of the prohibition of torture entails

that a State allegedly violating it cannot invoke hierarchically lower rules (in this case,

those on State immunity) to avoid the consequences of the illegality of its actions.’

170. Besides the fact that it follows from the dissenting opinion that in the event of a greater

violation of the ius cogens rule there is a great likelihood that a possible immunity would

have to yield, that also follows literally from the judgment itself. The European Court of

Human Rights has explained in fact under legal consideration 55 that a balancing must be

undertaken. It must be determined whether the limitation of Article 6 ECHR is proportionate

in relation to the object that is sought to be effected with immunity. There is thus a clear




issue of a hierarchy between the different norms of ius cogens. It is therefore obvious that

as a result in the event of a greater violation or a violation of the weightier norms of ius

cogens the hierarchically lower rule of immunity must first yield. The Association et al.

points out the distinction between the torture of an individual (as in the Al-Adsani Case) and

the genocide of 10,000 persons that the State of the Netherlands and the UN did not

prevent. The grounds underlying the decision in the judgment of the European Court of

Human Rights and the dissenting opinion lead to the conclusion that in the case of the

prohibition on genocide being a rule of ius cogens, the European Court of Human Rights will

decide that the immunity of a state would be subordinated to the rights of the individual.

171. For that matter, the fact that immunity was accepted in the Al-Adsani Case (by nine of the

seventeen judges) has been severely criticised (see for example A. Orakhelashvili, State

Immunity and International Public Order Revisited, German Yearbook of International Law

2006, pages 327 through 365). According to the author cited there should be a hierarchy of

norms and there should be no absolute inviolability (immunity) of states. The judgment in

the Al-Adsani Case is seen as a violation of the right that should be safeguarded by Article 6

ECHR (see Orakhelashvili, op. cit., page 347):

‘The Al-Adsani treatment of Art. 6 is incompatible with the principle repeatedly affirmed

in the ECHR’s jurisprudence, that the Convention must be interpreted so as to make its

safeguards practical and effective, and not illusory.’

(…)

‘ All these considerations demonstrate that Al-Adsani is an inconsistent and badly reasoned

decision that was not worth following in subsequent cases.’

172. The conclusions drawn by the District Court on the basis of the Al-Adsani judgment go much

further than is justified by the judgment. Al-Adsani concerns the immunity of a state where

another court had jurisdiction to hear the action brought against that state. The European

Court of Human Rights judged only on ius cogens on the basis of the violation of Article 3

ECHR alleged in that case, the prohibition on torture. The conclusion of the District Court

that no generally accepted norm exists on the ground of which applicable immunities

exceptionally lead in the framework of civil law to enforcement of the norms of ius cogens




is in that connection incorrect. The present case concerns after all the immunity of an

international organisation and violation of the norms arising under the prohibition on

genocide (beside numerous other norms for the protection of human rights).

173. The District Court has erroneously not drawn a distinction between the position of a state

and that of an international organisation. In addition, the District Court erroneously draws

no distinction between the different forms of ius cogens. The District Court should have held

that given the fact that the immunity of the United Nations has the purpose of preventing

violations of human rights, the relation between the prohibition on genocide as ius cogens

and immunity is entirely different than in the Al-Adsani Case. In that case it was not

genocide that was at issue but the torture of an individual.

174. There is no higher norm in international law than the prohibition on genocide. Its

enforcement is an important reason for the existence of international law and the most

important international organisation, the UN. That entails that where genocide has not been

prevented no immunity attaches to the international organisation. No greater recrimination

can be made indeed of an international organisation, except the actual commission of

genocide.

That is irreconcilable with the functional character of the immunity of the UN. The District

Court should have concluded that there was a violation of ius cogens and the interests of the

Association et al. weighed more heavily than the interest of the UN in immunity. The

decision that the immunity of the United Nations is absolute would mean that the United

Nations had an absolute power and was not subject to the rule of law, the principle that no-

one is above the law and that power is limited and regulated by the law. The District

Court’s judgment rejects that principle. A limitless immunity of the United Nations is

unacceptable and undermines the credibility of the United Nations as the important fighter

for human rights.

175. The Association et al. is with the above of the view that in these proceedings the Secretary-

General of the United Nations had the obligation to waive any possible right to immunity.

Indeed, a similar rule is contained in the Convention in various Articles dealing with the

immunity of Member States, officials and experts (see Articles 14, 20 and 23), to the effect

that a review should be conducted to ascertain whether the course of the law is impeded by




any grant of immunity. Should that interference not damage the interests of the United

Nations, the claim to immunity should yield. The Association et al. wonders how giving an

account of the non-prevention of genocide could damage the interests of the United

Nations. One of the primary interests of the United Nations is after all the prevention of

genocide as a peremptory norm of international law (ius cogens). The consideration by the

District Court that it is not for the District Court to prioritise conflicting norms of

international law, fails to understand the significance of the peremptory character of ius

cogens in its relationship to the prohibition on genocide and the serious violation of human

rights, in relation to the subordinate international law concept of immunity of the United

Nations.

Ground of appeal 13


‘The Court concludes from what it stated in 5.18-5.20 that no grounds can be derived from

the the Genocide Convention or similar mandatory international-law norms alligned withit, such as the prohibition on torture, for an exception to the norm referred to above of

the UN’s absolute immunity. This means that the Court does not get to a prioritizing of

conflicting international-law norms. There is no scope for a weighing of interests such as is

advocated by the Association et al.’


177. Legal consideration 5.21 is a summary of earlier legal considerations of the Court and

contains no supportive components of the reasoning. That does not obviate the fact that

what the District Court considers as pertinent is incorrect. The Association et al.refers to

what has been asserted in the above grounds of appeal, in particular the grounds of appeal

relating to legal considerations 5.18 through 5.20 and the explanations thereto.




Ground of appeal 14


‘The Court arrives at the same conclusion with regard to the right of access to a court of

law safeguarded in Article 6 ECHR, a fundamental element of the right to a fair trial. The

caselaw of the ECHR offers insufficient grounds for an interpretation of Article 6 ECHR in

the sense that in this respect it prevails over international immunities. The right of access

to a court of law is largely dependent on existing international-law obligations for its

substance and purport.

This applies in particular and in any case with respect to obligations towards the UN, as is

evident from the judgments of the European Court of Human Rights dated May 31, 2007 in

the cases of Behrami v. France (no. 714/01) and Saramati v. France, Germany and Norway

(no. 78166/01). In these cases the European Court of Human Rights ruled that the ECHR

should not be an impediment to the effective implementation of duties by international

missions in Kosovo under UN responsibility. By virtue of this, states cannot, according to

the Court, be held liable for the actions of national troops they made available for international peace-keeping missions. The Court concludes that this same ratio implies that

Article 6 ECHR cannot be a ground for exception to – as said before, absolute – immunity

under international law of the UN itself. The UN therefore cannot be brought before a

domestic court simply on the grounds of the right of access to a court of law guaranteed in

Article 6 ECHR.’

179. The District Court has further erroneously considered under legal consideration 5.23 that:

‘The Court is aware of the existence of ostensibly conflicting jurisprudence of the European

Court of Human Rights in the judgments of 18 February 1999 in the cases of Beer and Regan

v. Germany (no. 26083/9) and Waite en Kennedy v. Germany (no. 26083/94). In these

judgments the court expressed its concern that the founding of international organizations

and their corresponding immunities could be at the expense of the protection of human

rights.States may not, according to the Court, evade their obligations under the ECHR by

transferring their powers to international organisations. The Court thus appears to be

adopting the view that the immunities of international organisations are compatible with




Article 6 ECHR only if the institutions involved offer a reasonable alternative for protection

of human rights under the ECHR. If this is not the case the ECHR prescribes that the

immunities nvoked by the international organisation are not to be respected.’


‘The Court does not consider it necessary in the light of this jurisprudence to investigate

whether an alternative remedy is available to the Association et al. at the UN. The Court

considered on this as follows. The UN was founded before the ECHR came into force. There

can be no question therefore of a restriction of the protection of human rights under the

ECHR by transfer of powers to the UN. Moreover, the UN is an organisation with, as said

before, an almost universal membership. The international organisation that the

judgments in Beer and Regan v. Germany en Waite and Kennedy v. Germany related to,

namely, the European Space Agency, was founded in 1980 and therefore some considerable

time after the entry into force of the ECHR. This organisation has a restricted – European –

membership. The UN’s position therefore is very dissimilar to it. The ECHR has actually

taken the special position of the UN as a point of departure in the aforementioned cases of

Behrami v. France and Saramati v. France, Germany and Norway. All this justifies the

conclusion that motivations of the European Court of Human Rights in the cases of Beer and Regan v. Germany and Waite and Kennedy v. Germany do not apply to the UN. It deserves

special mention that if this were the case, under the ECHR as a result of the primacy of

international-law immunities it is primarily that state that would be liable for not allowing

access to a court of law within whose territory the institution in question has its seat or

the asserted wrongful act was committed. In the present case this is certainly not the

Netherlands.’


181. Ground of appeal 14 addresses itself to the judgment of the District Court on the meaning

and review of Article 6 ECHR and the grounds for that judgment.

182. The Court correctly held under legal consideration 5.22 that the right of access to the court

laid down in Article 6 ECHR is a fundamental right. It is incomprehensible that the Court

then proceeds with little ceremony to hold that this fundamental right should yield before

international law immunity. The judgment that holds that a human right – laid down in the




human rights treaties, ECHR and ICCPR – should yield is erroneous. The judgment directly

contradicts the text of Article 6 ECHR and Article 14 ICCPR, Articles that impose no

restrictions on the right of access to the court. The Association et al. points out that the

right to life in Article 2 ECHR is subject to an added proviso (‘save in the execution of a

sentence of a court following his conviction of a crime for which this penalty is provided by

law ’), as well as the rights to liberty and the right to respect for private and family life

(‘such as in accordance with the law and is necessary in a democratic society’ etc.). The

right of freedom of expression is similarly restricted.

The right of access to the Court is however not subject to any restrictions and the Court

holds contrary to Article 6 ECHR and Article 14 ICCPR by attaching these restrictions. Such

an unrestricted access is just and necessary. The law – including hereunder also the ECHR

itself – is an empty shell if access to the court is not safeguarded. The greater and more

powerful the opposite party is, so the need for protection of the citizens and their

fundamental rights should weigh more heavily. The District Court has demonstrated an

erroneous consideration in respect of Article 6 ECHR.

183. The District Court has underpinned its reasoning under legal considerations 5.22, 5.23 and

5.24 by addressing the caselaw of the European Court of Human Rights, insofar as that

relates to the immunity of states (legal consideration 5.22) and international organisations

(legal consideration 5.23). The Association et al. will address both the judgments of the

European Court of Human Rights, as well as the relevant caselaw that the District Court did

not address. All this should have led to a different decision than the one reached by the

District Court.

Caselaw of the ECHR: immunity of states

184. The District Court discussed under legal consideration 5.22 the judgments of the European

Court of Human Rights of 31 May 2007 in the Case Berahmi against France (no. 71412/01)

and Saramati against France, Germany and Norway (no. 78166/01).

185. The Association et al. repeats here its position taken at first instance regarding the caselaw

cited. It does not follow from the caselaw that the Dutch Court may not judge the extent to

which the UN has failed in securing international peace and security. The case cited

concerns the question to whom must be attributed the conduct of the national contingents

in an UN mission. The case concerns states and says nothing on the immunity of the UN or




the functional necessity for that immunity. The case cited is therefore not relevant in the

framework of the motions in the incidents. Even the United Nations itself, that may express

its view in the framework of the present proceedings, mentioned nothing in its explanation

(compare Chapter ‘the submission of third parties’, under point 8) over immunity.

186. The judgment regarding Berahmi and Saramati of the ECHR states merely that the states

who were sued, as suppliers of UN troops, could not be sued. It concerns therefore the

attribution of possibly unlawfully conduct in the UN context, conduct that in this case must

be attributed according to the European Court of Human Rights to KFOR (legal consideration

141). The European Court of Human Rights emphasized with that besides that there was

much scope to consider the circumstances in each case (legal consideration 151). There was

therefore no general rule given by the European Court of Human Rights for the attribution.

The District Court manifested no such weighing of the circumstances of the case (even

though a weighing or judgment of the attribution was not yet in issue). Whatever may be

the case, Article 6 ECHR was not relevant in the decision in question. Behrami and Saramati

brought actions against states, whereas they probably should have sued the international

organisation. Article 6 ECHR is not intended to offer protection against such a situation.

Article 6 ECHR safeguards only access to the court. Article 6 ECHR does not guarantee that

the party sued is the proper party.

187. The judgment here discussed is also of an entirely different order than the present case. It

is recorded under point 17 of Chapter III (the circumstances of the Saramati Case) that:

‘On 9 October 2002 the Supreme Court of Kosovo quashed Mr Saramati’s conviction and his

case was sent for re-trial. His release from detention was ordered. A re-trial has yet to be

fixed.’

The right of access to the court under Article 6 ECHR was not further reviewed because –

contrary to what the the District Court evidently intended – that right was not in issue, and

heedful of the quote above was also sufficiently safeguarded as such access to the court was

provided in Kosovo. The European Court of Human Rights in the cases concerned gave

merely a general appraisal of the attribution in that case (see legal consideration 149:)

‘Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are

fundamental to the mission of the UN to secure international peace and security and since




they rely for their effectiveness on support from member states, the Convention can not be

interpreted in a manner which would subject the acts and omissions of Contracting Parties

which are covered by UNSC Resolutions and occur prior to or in the course of such missions,

to the scrutiny of the Court.

To do so would be to interfere with the fulfilment of the UN’s key mission in this field

including, as argued by certain parties with effective conduct of its operations.’

The consideration cited relates to the interpretation of the ECHR and gives no judgment on

the issue whether the immunity of the United Nations must yield before obligations arising

under human rights treaties or obligations under the Genocide Convention. The European

Court of Human Rights made it clear on several ocassions that the cases of Behrami and

Saramati contrasted sharply with other cases decided by the European Court of Human

Rights. It is thus at least premature to attach more far-reaching consequences to these

judgments than is justified by the case itself. The Association et al. points out once more

that the present case is of a totally different order. This case transcends the individual

interest and touches the essence of international obligations for the protection of human

rights and the prohibition on genocide.

188. Itis not stated anywhere in the judgments of the European Court of Human Rights regarding

Behrami and Saramati – contrary to what the District Court held - that the ECHR should raise

no impediments to an effective implementation of the duties of international missions in

Kosovo under the responsibility of the United Nations. Quite apart from that, Article 6 of the

ECHR constitutes no impediment in the present proceedings to the task that was then

carried out in Srebrenica. The District Court did not make clear where such impediment

would reside if the Association et al. were to be granted access to the Court.

Implementation of the mission in Srebrenica failed – as may be inferred from the originating

writ of summons – and its implementation is no longer susceptible of influence by legal

proceedings ex post facto. Even the United Nations has held in its report that they were not

effective in their implementation of the mission. In the present case it would serve little

purpose to question whether, and if so, which consequences should arise under civil and

international law of the ineffective implementation of the mission. Moreover, if for

whatever reason a review had been conducted and if the United Nations had fulfilled the

obligations arising under Section 29 of the Convention, it evidently would not have impeded

the implementation of the mission, alternatively the review would have been found to be

more important than any possible impediments. Article 6 ECHR is involved first because the




United Nations has offered under Section 29 of the Convention no possibility of access to the

court.

189. In the closing sentence of legal consideration 5.23 the District Court considers that the

United Nations could not be brought before the national court solely on the ground of the

access to the court safeguarded by Article 6 ECHR. That conclusion certainly cannot be

drawn on the ground of the judgments of the European Court of Human Rights in Behrami

and Saramati and taking Section 29 of the Convention into account.

Caselaw of the ECHR: immunity of international organisations

190. For a proper understanding of the European Court of Human Rights dated 18 February 1999

in the Waite and Kennedy/Germany Case (no. 26083/94), which is also cited in the writ of

summons (see point 456 et seq. of the writ of summons), the Association et al. briefly

recalls the case. The judgment cited involved two employees of the European Space Agency,

ESA, who were dismissed and brought a labour law dispute before the German court, which

held that it did not have jurisdiction due to the immunity of ESA. The employees appealed

against that judgment to the European Court of Human Rights, with reference to Article 6

ECHR. The principal grounds for the judgment of the European Court of Human Rights are

(see legal considerations 67 and 68):

‘It should be recalled that the Convention is intended to guarantee not theoretical or

illusory rights, but rights that are practical and effective. This is particularly true for the

right of access to the courts in view of the prominent place held in a democratic society by

the right to a fair trial.

(…)

‘For the Court, a material factor in determining whether granting ESA immunity from

German jurisdiction is permissible under the Convention is whether the applicants had

available to them reasonable alternative means to protect effectively their rights under

the Convention.’

191. Subsequently the European Court of Human Rights held under legal consideration 69 that

the immunity invoked by ESA prevailed only because an alternative effective legal remedy

existed. That implies that in the present case immunity could not be accorded as no

alternative effective legal remedy against the UN is available to the Association et al. The




Association et al. will below further address the absence of an alternative effective legal

remedy in this case.

192. The District Court correctly recognised that according to the judgment of the European

Court of Human Rights states may not evade their obligations under the ECHR by

transferring powers to international organisations. The District Court did not refer to any

particular legal consideration and it is very much the question whether that decision can be

traced back to the cited judgment of the European Court of Human Rights. This evasion of

obligations under the ECHR is precisely what is happening in this case; the State of the

Netherlands will not co-operate and refers to the United Nations. Then the State of the

Netherlands asserts that the party it has refered to may not be sued on the ground of

immunity. The District Court should never have followed that line of reasoning. The District

Court goes on to say that the ECHR ‘appears’ to adopt the position that immunities of

international organisations are only reconcilable with Article 6 ECHR if a reasonable

alternative remedy for protection of ECHR rights exists with the international organisation

concerned. By using the word ‘appears’ the District Court manifests an erroneous legal

consideration. The judgment of the European Court of Human Rights gives no cause to

assume that the European Court of Human Rights has intended anything other than what was

expressed in the judgment. The extension of the holding by the District Court should have

been that the immunity of the United Nations in the present case is not reconcilable with

Article 6 ECHR and that the United Nations offered no reasonable alternative remedy for the

protection of the ECHR rights. After all, there has been no implementation of Section 29 of

the Convention (for more than 60 years already). The District Court did not even address

Section 29 in this framework, which it should have done.

193. At first instance and above the Association et al. has referred to the caselaw of the Hoge

Raad (highest court in the Netherlands). Where an alternative and effective legal remedy is

absent, the immunity of the international organisation should yield to the interests of the

plaintiff (20 December 1985, NJ 1986, 438 (Spanish/Iran-United States Claims Tribunal). In

that case it was further expressly held that the fact that the disputed conduct fell under the

functional immunity posed no obstacle to the weighing of interests referred to above (see

legal consideration 3.3.5). Immunity was accorded in that case only because the

international organisation in question provided an alternative and effective legal remedy

(see legal consideration 3.3.6). In the judgment of the District Court The Hague, 28

November 2001, NJkort 2002, 1, the Court also held that it had jurisdiction to hear the case




where an international organisation invoked its immunity but did not make available an

alternative effective legal remedy.

Legal consideration 5.24

194. The District Court elaborated further under legal consideration 5.24 on its earlier judgment

that states may not evade their obligations under the ECHR by transferring powers to

international organisations. The District Court held that there was here no question of any

such limitation by transfer of powers as the United Nations were founded before the ECHR

entered into force. This legal consideration is extremely mannered and appears to have

been prompted by the desire of the District Court to maintain the immunity of the United

Nations somehow or other. The District Court should have conducted a review on the basis

of Article 6 ECHR and not by reference to a rule formulated by the District Court on the

transfer of powers. The District Court is now paying for the fact that it based itself on a

judgment that concerned attribution. In that case it was precisely states who were sued and

not the United Nations. Those states could not evade their responsibility by the transfer of

powers but that is not the issue in the present case. It is the United Nations that are being

sued, after all. Nor is the consideration of the District Court correct that the legal

considerations of the European Court of Human Rights regarding Waite and Kennedy do not

apply to the United Nations.

It is also incorrect to hold that the ECHR no longer applies because the United Nations were

founded before the ECHR entered into force. The following is of importance on this.

195. The ECHR is not a treaty that fell out of the sky on the day of signature in November 1953.

It is a codification of then current convictions of long standing concerning human rights. The

Governments of the signatory States considered, inter alia:

‘Considering the Universal Declaration of Human Rights proclaimed by the General

Assembly of the United Nations on 10th December 1948’

and:

‘that this Declaration aims at securing the universal and effective recognition and

observance of of the Rights therein declared ’




And also:

‘Reaffirming their profound belief in those fundamental freedoms which are the

foundation of justice and peace in the world and are best maintained on the one hand by

an effective political democracy and on the other by a common understanding and

observance of the human rights upon which they depend.’

196. It emerges from the above quotations that the ECHR is a codification of long-standing, deep-

rooted convictions on human rights and democracy. Those convictions pre-date the the

United Nations itself and the rights in question (including the right of access to the court)

that are codified already existed at the founding of the United Nations. That is also

expressed, indeed, in the existence of section 29 of the Convention. The argument of the

District Court derived from the notion that the United Nations is older than the ECHR is

consequently erroneous. It is on the right of access to the court that the United Nations in

part derives its rationale and reason to exist.

197. The District Court gives the appearance in its judgment as if older norms should have

priority over younger norms. That judgment has no foundation and is erroneous, and the

District Court also fails to underpin its judgment.

198. The limitation that the District Court attaches to Article 6 ECHR on the basis of the fact that

the United Nations is greater than the countries who are signatories of the ECHR is also

contrary to the law. That limitation derives from an erroneous notion that the right is

determined by the size of an organisation. That line of reasoning is the antithesis of the

protection of rights. The necessity for the legal protection of the citizen grows

proportionately with the size of the concentration of power. It is not the power itself but

the person over whom the power is exercised who must be protected at law. That is the

essence of fundamental human rights.

Judgment of the ECJ regarding Kadi & Al-Barakaat




199. The European Court of Justice on 3 September 2008 pronounced a judgment, which is an

important judgment for the present case, on the relationship between UN Resolutions and

the fundamental rights arising under the EU Treaty, including thereunder Article 6 ECHR.

The Association et al. will address this judgment at some length. The Association et al. will

address in sequence the facts, the Advisory Opinion of the Advocate-General and the

decision of the Court at second instance. Stated briefly, the judgment entails first that the

community legal order is separate from obligations under international treaties, including

UN treaties and rules. Secondly, the judgment entails that Member States of the European

Union and its organs must review in respect of the fulfilment of international obligations

whether the basic rights of the citizens arising under the EU Treaty are safeguarded. That

demonstrates the incorrectness of the reasoning of the District Court.

Facts

200. The facts in the Case Kadi and Al-Barakaat (Court of Justice, dated 3 September 2008, Case

C-415/05 P, Al Barakaat International Foundation against Council of the European Union and

Commission of the European Communities) are briefly given below.

201. The Sanctions Committee of the Security Council of the United Nations designated Kadi and

Al-Barakaat International Foundation as persons suspected of supporting terrorism, as a

result of which their funds and other financial resources were frozen. Kadi and Al-Barakat

challenged the legality of the order, whereupon the Council implemented the order to

freeze all property within the European Community. Kadi and Al-Barakaat argued, inter alia,

that despite the intended aim of combatting international terrorism and the purpose of the

United Nations to secure peace and security, the contested regulation violated a number of

fundamental rights. The Council and the European Commission adopted the position that the

regulation was necessary for the implementation of binding resolutions of the Security

Council and that accordingly the European Community judicature should refrain from

subjecting this regulation to review for compatibility with fundamental rights. In effect,

they asserted that when the Security Council spoke, the court should keep quiet.

202. The State of the Netherlands intervened in the proceedings on the side of the Council and

European Commission. The State of the Netherlands argued before the Court of Justice that

a resolution adopted by the Security Council,’ in principle escapes all review by the

Community judicature, even concerning observance of fundamental rights, and so for that




reason enjoys immunity from jurisdiction’ (see paragraph 262 of the Judgment). The

position of the State of the Netherlands also reappears in these proceedings. The District

Court also gave its judgment in line with the grounds quoted. Both the Advocate-General

and the Court of Justice gave short shrift to the position quoted.

Opinion of Advocate-General to the Court of Justice of the EU

203. Advocate-General M. Poiares Maduro expressed his view of the Al-Barakat Case in his

Opinion of 23 January 2008. The Opinion is instructive to read and presents a well-founded

view of the European Community legal order in relation to other international obligations.

The Association et al. cannot here neglect to refer to the Advisory Opinion of the Public

Prosecutor’s Department of 7 November 2007 and its Memorandum of Pleadings of 18 June

2008. As was observed at the hearing of 18 June 2008 at the time of the rejoinder, the

Advisory Opinion of the Public Prosecutor’s Department should have had the character of a

legal opinion. The Opinion of Advocate-General Poiares Maduro is a good example of such an

opinion before a court: reasoned and conscious of the interests of both sides. In contrast

with that, the few pages submitted in these proceedings by the Public Prosecutor’s

Department cannot withstand even the most minimal criticism. It is a one-sided document

in which the position of the State of the Netherlands and the United Nations is adopted

almost literally but without any mention of the extensive reasoning of the Association et al.

The Public Prosecutor’s Department has not only ignored the great importance of this case,

which raises the issue of where the responsibility for allowing genocide lies, but also acted

contrary to the legal tradition governing the submission of an Advisory Opinion by the Public

Prosecutor’s Department.

204. As there is little to add to the Opinion of Advocate-General Poiares Maduro, the Association

et al. here cites a number of core considerations:

‘21. The logical starting point of our discussion should, of course, be the landmark

ruling in Van Gend en Loos, in which the Court affirmed the autonomy of the

Community legal order. The Court held that the Treaty is not merely an agreement

between States, but an agreement between the peoples of Europe. It considered

that the Treaty had established a ‘new legal order’, beholden to, but distinct from

the existing legal order of public international law. In other words, the Treaty has




created a municipal legal order of trans-national dimensions, of which it forms the

‘basic constitutional charter’.

‘24. All these cases have in common that, although the Court takes great care to

respect the obligations that are incumbent on the Community by virtue of

international law, it seeks, first and foremost, to preserve the constitutional

framework created by the Treaty. Thus, it would be wrong to conclude that, once

the Community is bound by a rule of international law, the Community Courts must

bow to that rule with complete acquiescence and apply it unconditionally in the

Community legal order. The relationship between international law and the

Community legal order is governed by the Community legal order itself, and

international law can permeate that legal order only under the conditions set by

the constitutional principles of the Community.’

‘32. Besides, the obligations under Article 307 EC and the related duty of loyal

cooperation flow in both directions: they apply to the Community as well as to the

Member States. The second paragraph of Article 307 EC provides that ‘the Member

State or States concerned shall take all appropriate steps to eliminate …

incompatibilities’ between their prior treaty obligations and their obligationsunder Community law. To this end, Member States shall ‘assist each other … and

shall, where appropriate adopt a common attitude’. That duty requires Member

States to exercise their powers and responsibilities in an international organisation

such as the United Nations in a manner that is compatible with the conditions set

by the primary rules and the general principles of Community law. As Members of

the United Nations, the Member States, and particularly – in the context of the

present case – those belonging to the Security Council, have to act in such a way as

to prevent, as far as possible, the adoption of decisions by organs of the United

Nations that are liable to enter into conflict with the core principles of the

Community legal order. The Member States themselves, therefore, carry a

responsibility to minimise the risk of conflicts between the Community legal order

and international law.’

‘34. The implication that the present case concerns a ‘political question’, in respect of

which even the most humble degree of judicial interference would be

inappropriate, is, in my view, untenable. The claim that a measure is necessary for




the maintenance of international peace and security cannot operate so as to silence

the general principles of Community law and deprive individuals of their

fundamental rights. This does not detract from the importance of the interest in

maintaining international peace and security; it simply means that it remains the

duty of the courts to assess the lawfulness of measures that may conflict with

other interests that are equally of great importance and with the protection of

which the courts are entrusted. (…)’

‘35. Certainly, extraordinary circumstances may justify restrictions on individual

freedom that would be unacceptable under normal conditions. However, that

should not induce us to say that ‘there are cases in which a veil should be drawn for

a while over liberty, as it was customary to cover the statues of the gods’. Nor does

it mean, as the United Kingdom submits, that judicial review in those cases should

be only ‘of the most marginal kind’. On the contrary, when the risks to public

security are believed to be extraordinarily high, the pressure is particularly strong

to take measures that disregard individual rights, especially in respect of

individuals who have little or no access to the political process. Therefore, in those

instances, the courts should fulfil their duty to uphold the rule of law with

increased vigilance. Thus, the same circumstances that may justify exceptionalrestrictions on fundamental rights also require the courts to ascertain carefully

whether those restrictions go beyond what is necessary. As I shall discuss below, the

Court must verify whether the claim that extraordinarily high security risks exist is

substantiated and it must ensure that the measures adopted strike a proper balance

between the nature of the security risk and the extent to which these measures

encroach upon the fundamental rights of individuals’.

‘37. It is certainly correct to say that, in ensuring the observance of fundamental rights

within the Community, the Court of Justice draws inspiration from the case-law of

the European Court of Human Rights. None the less, there remain important

differences between the two courts. The task of the European Court of Human

Rights is to ensure the observance of the commitments entered into by the

Contracting States under the Convention. (…) The EC Treaty, by contrast, has

founded an autonomous legal order, within which States as well as individuals have




immediate rights and obligations. The duty of the Court of Justice is to act as the

constitutional court of the municipal legal order that is the Community. (…)’

‘38. The Council asserted at the hearing that, by exercising its judicial task in respect of

acts of Community institutions which have their source in Security Council

resolutions, the Court would exceed its proper function and ‘speak on behalf of the

international community’. However, that assertion clearly goes too far. Of course,

if the Court were to find that the contested resolution cannot be applied in the

Community legal order, this is likely to have certain repercussions on the

international stage. It should be noted, however, that these repercussions need not

necessarily be negative. They are the immediate consequence of the fact that, as

the system governing the functioning of the United Nations now stands, the only

option available to individuals who wish to have access to an independent tribunal

in order to obtain adequate protection of their fundamental rights is to challenge

domestic implementing measures before a domestic court. (…)’

‘44. (…) However, the Court cannot, in deference to the views of those institutions

(intended: such as the Security Council, addition of counsel),, turn its back on the

fundamental values that lie at the basis of the Community legal order and which ithas the duty to protect. Respect for other institutions is meaningful only if it can

be built on a shared understanding of these values and on a mutual commitment to

protect them.

Consequently, in situations where the Community’s fundamental values are in the

balance, the Court may be required to reassess, and possibly annul, measures

adopted by the Community institutions, even when those measures reflect the

wishes of the Security Council ...’

45. The fact that the measures at issue are intended to suppress international

terrorism should not inhibit the Court from fulfilling its duty to preserve the rule

of law. In doing so, rather than trespassing into the domain of politics, the Court is

reaffirming the limits that the law imposes on certain political decisions. This is

never an easy task, and, indeed, it is a great challenge for a court to apply wisdom

in matters relating to the threat of terrorism. Yet, the same holds true for the

political institutions. Especially in matters of public security, the political process




is liable to become overly responsive to immediate popular concerns, leading the

authorities to allay the anxieties of the many at the expense of the rights of a few.

This is precisely when courts ought to get involved, in order to ensure that the

political necessities of today do not become the legal realities of tomorrow. Their

responsibility is to guarantee that what may be politically expedient at a particular

moment also complies with the rule of law without which, in the long run, no

democratic society can truly prosper. (…)’

‘49. (…) As to the right to effective judicial review, the Court has held: ‘The European

Community is … a community based on the rule of law in which its institutions are

subject to judicial review of the compatibility of their acts with the Treaty and

with the general principles of law which include fundamental rights. (…) ndividuals

are therefore entitled to effective judicial protection of the rights they derive

from the Community legal order, and the right to such protection is one of the

general principles of law stemming from the constitutional traditions common to

the Member States (…)’

‘52. The right to effective judicial protection holds a prominent place in the (…) fundamental rights. While certain limitations on that right might be permitted if

there are other compelling interests, it is unacceptable in a democratic society to

impair the very essence of that right. As the European Court of Human Right held in

Klass and Others, ‘the rule of law implies, inter alia, that an interference by the

executive authorities with an individual’s rights should be subject to an effective

control which should normally be assured by the judiciary, at least in the last

resort, judicial control offering the best guarantees of independence, impartiality

and a proper procedure.’”

‘54. Had there been a genuine and effective mechanism of judicial control by an

independent tribunal at the level of the United Nations, then this might have

released the Community from the obligation to provide for judicial control of

implementing measures that apply within the Community legal order. However, no

such mechanism currently exists. As the Commission and the Council themselves

have stressed in their pleadings, the decision whether or not to remove a person

from the United Nations sanctions list remains within the full discretion of the




Sanctions Committee – a diplomatic organ. In those circumstances, it must be held

that the right to judicial review by an independent tribunal has not been secured at

the level of the United Nations. As a consequence, the Community institutions

cannot dispense with proper judicial review proceedings when implementing the

Security Council resolutions in question within the Community legal order.’

Judgment of the Court of Justice

205. The case of Kadi was joined with the case of Al-Barakat in the judgment of the Court of

Justice. It was discussed above that the State of the Netherlands (together with a number of

other countries) intervened in the proceedings. The position of the State of the Netherlands

was addressed in the following legal considerations:

‘262. Conversely, the French Republic, the Kingdom of the Netherlands, the United

Kingdom and the Council approve, in essence, the analysis made in that connection by the

Court of First Instance in the judgments under appeal and endorse the conclusion drawn

therefrom that, so far as concerns the internal lawfulness of the contested regulation, the

latter, inasmuch as it puts into effect resolutions adopted by the Security Council pursuant

to Chapter VII of the Charter of the United Nations, in principle escapes all review by theCommunity judicature, even concerning observance of fundamental rights, and so for that

reason enjoys immunity from jurisdiction.’

‘263. However, unlike the Court of First Instance, those parties take the view that no

review of the internal lawfulness of resolutions of the Security Council may be carried out

by the Community judicature. They therefore complain that the Court of First Instance

decided that such review was possible in the light of jus cogens.’

‘265. Further, the French Republic, the Kingdom of the Netherlands, the United Kingdom

and the Commission consider that the Court of First Instance erred in law when it ruled

that the fundamental rights at issue in these cases fell within the scope of jus cogens.’

‘268. For their part, the French Republic and the Kingdom of the Netherlands suggest

that the Court should undertake a replacement of grounds, claiming that Mr Kadi’s and Al

Barakaat’s pleas in law relating to jus cogens should be dismissed by reason of the absolute




lack of jurisdiction of the Community judicature to carry out any review of resolutions of

the Security Council, even in the light of jus cogens.’

‘281. In this connection it is to be borne in mind that the Community is based on the rule

of law, inasmuch as neither its Member States nor its institutions can avoid review of the

conformity of their acts with the basic constitutional charter, the EC Treaty, which

established a complete system of legal remedies and procedures designed to enable the

Court of Justice to review the legality of acts of the institutions.’

‘282. It is also to be recalled that an international agreement cannot affect the

allocation of powers fixed by the Treaties or, consequently, the autonomy of the

Community legal system, observance of which is ensured by the Court by virtue of the

exclusive jurisdiction conferred on it by Article 220 EC, jurisdiction that the Court has,

moreover, already held to form part of the very foundations of the Community (…).’

‘283. In addition, according to settled case-law, fundamental rights form an integral part

of the general principles of law whose observance the Court ensures. For that purpose, the

Court draws inspiration from the constitutional traditions common to the Member States

and from the guidelines supplied by international instruments for the protection of humanrights on which the Member States have collaborated or to which they are signatories. In

that regard, the ECHR has special significance (…).’

‘284. It is also clear from the case-law that respect for human rights is a condition of the

lawfulness of Community acts (…) and that measures incompatible with respect for human

rights are not acceptable in the Community (…).’

‘285. It follows from all those considerations that the obligations imposed by an

international agreement cannot have the effect of prejudicing the constitutional principles

of the EC Treaty, which include the principle that all Community acts must respect

fundamental rights, that respect constituting a condition of their lawfulness which it is for

the Court to review in the framework of the complete system of legal remedies established

by the Treaty.’

‘290. It must therefore be considered whether, as the Court of First Instance held, as a

result of the principles governing the relationship between the international legal order




under the United Nations and the Community legal order, any judicial review of the

internal lawfulness of the contested regulation in the light of fundamental freedoms is in

principle excluded, notwithstanding the fact that, as is clear from the decisions referred to

in paragraphs 281 to 284 above, such review is a constitutional guarantee forming part of

the very foundations of the Community.’

‘299. It follows from all those considerations that it is not a consequence of the

principles governing the international legal order under the United Nations that any

judicial review of the internal lawfulness of the contested regulation in the light of

fundamental freedoms is excluded by virtue of the fact that that measure is intended to

give effect to a resolution of the Security Council adopted under Chapter VII of the Charter

of the United Nations.’

‘300. What is more, such immunity from jurisdiction for a Community measure like the

contested regulation, as a corollary of the principle of the primacy at the level of

international law of obligations under the Charter of the United Nations, especially those

relating to the implementation of resolutions of the Security Council adopted under

Chapter VII of the Charter, cannot find a basis in the EC Treaty.’

‘303. Those provisions (intended are: Articles 297 and 307 EU, addition of counsel)

cannot, however, be understood to authorise any derogation from the principles of liberty,

democracy and respect for human rights and fundamental freedoms enshrined in Article

6(1) EU as a foundation of the Union.’

‘304. Article 307 EC may in no circumstances permit any challenge to the principles that

form part of the very foundations of the Community legal order, one of which is the

protection of fundamental rights, including the review by the Community judicature of the

lawfulness of Community measures as regards their consistency with those fundamental

rights.’

‘305. Nor can an immunity from jurisdiction for the contested regulation with regard to

the review of its compatibility with fundamental rights, arising from the alleged absolute

primacy of the resolutions of the Security Council to which that measure is designed to give

effect, find any basis in the place that obligations under the Charter of the United Nations




would occupy in the hierarchy of norms within the Community legal order if those

obligations were to be classified in that hierarchy.’

‘321. In any event, the existence, within that United Nations system, of the re-

examination procedure before the Sanctions Committee, even having regard to the

amendments recently made to it, cannot give rise to generalised immunity from

jurisdiction within the internal legal order of the Community.’

‘322. Indeed, such immunity, constituting a significant derogation from the scheme of

judicial protection of fundamental rights laid down by the EC Treaty, appears unjustified,

for clearly that re-examination procedure does not offer the guarantees of judicial

protection.’

‘326. It follows from the foregoing that the Community judicature must, in accordance

with the powers conferred on it by the EC Treaty, ensure the review, in principle the full

review, of the lawfulness of all Community acts in the light of the fundamental rights

forming an integral part of the general principles of Community law, including review of

Community measures which, like the contested regulation, are designed to give effect to

the resolutions adopted by the Security Council under Chapter VII of the Charter of theUnited Nations.’

‘327. The Court of First Instance erred in law, therefore, when it held, in paragraphs 212

to 231 of Kadi and 263 to 282 of Yusuf and Al Barakaat, that it followed from the principles

governing the relationship between the international legal order under the United Nations

and the Community legal order that the contested regulation, since it is designed to give

effect to a resolution adopted by the Security Council under Chapter VII of the Charter of

the United Nations affording no latitude in that respect, must enjoy immunity from

jurisdiction so far as concerns its internal lawfulness save with regard to its compatibility

with the norms of jus cogens.’

‘335. According to settled case-law, the principle of effective judicial protection is a

general principle of Community law stemming from the constitutional traditions common to

the Member States, which has been enshrined in Articles 6 and 13 of the ECHR, this

principle having furthermore been reaffirmed by Article 47 of the Charter of fundamental

rights of the European Union, proclaimed on 7 December 2000 in Nice. (…)’




206. That case concerned European Community measures. The case shows that the European

Court of Justice in order to protect European citizens considers a review of the fundamental

rights of the European Community legal order to be necessary also in cases of resolutions

deriving from the Charter of the United Nations. In addition, the Court of Justice held that

an effective legal protection is a fundamental right within the European Community legal

order, and which may not be violated. The District Court has erroneously ignored these

fundamental rights of the Association et al. by holding that absolute immunity should attach

to the United Nations.

Other legal considerations of the District Court

207. The District Court stated in the closing two sentences of legal consideration 5.24 that under

the ECHR it is primarily that state within whose territory the wrongful act was committed

that would be liable for not allowing access to a court of law. According to the District Court

that state is not the Netherlands. The District Court incorrectly failed to provide any

grounds for that assertion and without that the comment is incomprehensible. To the extent

that the District Court meant that another court would have territorial jurisdiction the

Association et al. would point out that the ECHR does not assign territorial jurisdiction. The

normal rules apply there, that in the result mean that the District Court, The Hague has

jurisdiction (see paragraphs 289 through 292 of the writ of summons at first instance).

208. It follows from the above that the limitations attached to Article 6 ECHR by the District

Court are incorrect. The District Court’s interpretation of Article 6 ECHR errs at law. The

rights under Article 6 ECHR remain safeguarded even where the interests of the United

Nations may possibly be affected. The European Community legal order implies that these

are not ranked as subordinate to the legal order of the United Nations. Matters that arise

under UN resolutions can also be reviewed against the human rights that are safeguarded by

the ECHR.

The Member States, including the Netherlands, must ensure that this European Community

legal order – including the human rights arising under, inter alia, Article 6 ECHR – is

safeguarded. In any event, the line of reasoning that the ECHR would not apply because it

post-dates the founding of the United Nations is insupportable.




209. To conclude, the Association et al. points out that in the above case of Al-Barakaat the

State of the Netherlands intervened on the side of the European Council. The State of the

Netherlands then adopted the same position as in the present proceedings, namely, that

whatever the United Nations does within the framework of the resolutions of the Security

Council under Chapter VII of the UN Charter falls outside the control of the European

Community judicature, even in the case of fundamental rights, and that the United Nations

enjoys immunity from jurisdiction to this extent (see legal consideration 262). That position

is shown, in the light of the judgment cited, to be erroneous.

Ground of appeal 15


‘Reviewing against Article 14 ICCPR does not lead to a different outcome.’


211. It follows from the grounds of appeal set out above and explanations thereto that a review

of Article 14 ICCPR should have had the result that the District Court has jurisdiction to hear

the claim of the Association et al. against the United Nations.

212. The District Court has further failed to understand that – otherwise than in the case of the

ECHR – virtually every country of the United Nations has acceded to the ICCPR. The

reasoning of the District Court under legal consideration 5.24 that no significance attaches

to certain caselaw given the fact that the judgments of the European Court of Human Rights

related to a European international organisation with merely a restricted European

membership cannot apply to the ICCPR. Without further grounds, which are absent, it is

incomprehensible that the District Court concluded that a review of Article 14 ICCPR would

not lead to a different result.

After all, virtually every country of the United Nations has through the ICCPR safeguarded

the right of access to the court, a principle that is indeed also expressed in section 29 of the

Convention.




Ground of appeal 16


‘The Court’s enquiry into a possible conflict between the absolute immunity of the UN that

is valid in international law and other norms of international law does not lead to an

exception to this immunity.’


214. Given the grounds of appeal set out above and explanations thereto it should be concluded

that legal consideration 5.26 is erroneous. For the sake of brevity the Association et al.

refers to the grounds of appeal set out above with explanations.

Ground of appeal 17


‘On the basis of the above, the State’s interim motion to have the Court declare it has no

jurisdiction in the case of the Association et al. against the UN should be allowed.’

The District Court has also erroneously considered under legal consideration 5.28 that:

‘In view of this outcome the State’s second interim motion to intervene as a third party or,

alternatively, to join the defendant in the action of the Association et al. against the UN

does not need to be considered.’


‘The Association et al. should be ordered to pay the costs of this incident as the party

against whom the judgment is given.’





217. Given the grounds of appeal set out above and explanations thereto the District Court

should have dismissed the interim motion to have the Court declare that it had no

jurisdiction in the case of the Association et al. against the UN. That entails that the District

Court should have considered the motions of the State of the Netherlands to intervene,

alternatively, to join in the action. That consideration should still be effected. The

Association et al. persists in its defence against those interim motions and refers to what it

has put forward in its statement of defence in the incident and pleadings at first instance.

The interim motions of the State of the Netherlands to intervene, alternatively, to join have

to be dismissed, too.

Ground of appeal 18

218. The decision of the District Court under legal consideration 6 is incorrect.


219. Given the grounds of appeal set out above and explanations thereto the District Court

should have dismissed the interim motions of the State of the Netherlands and hold that it

had jurisdiction to hear the claims of the Association et al. against the United Nations. It

follows also from the above that the District Court incorrectly ordered the Association et al.

to pay costs and that the District Court erroneously failed to decide on the motion on

intervention, alternatively, joinder.

220. To the above should once again be added that the United Nations did not appear in its own

behalf.

Only the State of the Netherlands asserted that it had sufficient interest in pleading the

immunity of the United Nations on the ground of the international obligation that the State

of the Netherlands had in that respect. It was shown above that there are numerous other,

more weighty obligations under international and human rights law on the State of the

Netherlands that were disregarded with the invocation of immunity. It should be considered

that what is at issue here is not a coincidental disregard of the obligations under



international and human rights law, including also the obligation of the State of the

Netherlands within the framework of its membership of the European Union. The action

brought by the State of the Netherlands must be traced back to its actual interest. After all,

if immunity is accorded and the Netherlands Court declares itself as without jurisdiction the

State of the Netherlands can restrict its defence and keep referring to the United Nations.

In conclusion:

If it pleases the Court to give judgment having immediate effect:

1. to set aside the judgment against which appeal was lodged;

2. still to determine that the District Court The Hague has jurisdiction to hear the claims that

the Association et al. instituted by service of writ of summons of 4 June 2007 against the

United Nations;

3. to direct the State of the Netherlands to reimburse the appellants for all that the Association

et al. might have paid to the State of the Netherlands in implementation of the contested

judgment plus the statutory interest from the day of payment to the day of repayment;

4. to condemn the State of the Netherlands in the costs of both courts plus subsequent costs to

be determined by the Court of Appeal all to be satisfied within fourteen days of official dating

of the judgment and – should satisfaction of the (subsequent) costs not be effected within the

stated period - plus the statutory interest on such subsequent costs from the stated period for

satisfaction.

srebrenica genocide survivors v the state of netherlands, the statement of appeal

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