Srebrenica Genocide Survivors V The State of Netherlands, The Statement of Appeal

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
© Van Diepen Van der Kroef Advocaten page 1 of 99

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

Contents
Title pages pages 1-2
Contents page 3
Introduction pages 3-6 nos. 1 - 10
Ground of appeal 1 pages 6-7 nos. 11-13
Ground of appeal 13 page 75 nos. 176-177
Conclusion page 99
Introduction
1. The Appellants, hereafter: the Association et al., instituted proceedings by writ of summons
of 4 June 2007 against -the State of the Netherlands and the United Nations, hereafter: ‘the
UN’. The Association et al. claimed, in summary, a judicial declaration that the State of the
Netherlands and the United Nations acted unlawfully in failing to perform their obligations,
including the obligations arising under the Genocide Convention to prevent genocide,
alternatively that they acted unlawfully with respect to the persons whose interests the
Association promotes. The Association et al. promotes the interests of some 6,000 surviving
relatives, who were referred to in earlier legal documents as ‘the Mothers of Srebrenica’.

2. The Association et al. rested its claims at first instance – briefly stated – on the following
facts. The first act of genocide in Europe since the Second World War took place in July
1995 in the Safe Area of Srebrenica. The United Nations and the State of the Netherlands
(through the Netherlands UN-battalion Dutchbat) are jointly and severally liable for the fall
of the enclave and the consequences thereof, including in particular the genocide that
occurred as a result of which between 8,000 and 10,000 persons were murdered. The fall
and the genocide occurred despite the undertakings of the United Nations and the State of
the Netherlands that the population would be protected. Besides that undertaking the
actions (including thereunder the failure to act) of the United Nations and the State of the
Netherlands towards the Association et al. were unlawful and in contravention of the
Genocide Convention. That treaty obliges (both directly and indirectly) the State of the
Netherlands and the United Nations to employ all means to prevent genocide, irrespective
of the efficacy of such employment.
3. The United Nations informed the Permanent Representative of the Netherlands to the
United Nations by letter of 17 August 2007 that – in summary – the United Nations enjoyed
immunity and that the United Nations would not enter an appearance in the proceedings.
The United Nations did not enter an appearance on the date on which it was summoned,
namely, 19 September 2007. On 7 November 2007 the Public Prosecutions Department
submitted an official Advisory Opinion under Article 44 Rv (Wetboek van Burgerlijke
Rechtsvordering: Code of Civil Procedure, hereafter: CCPr). On that same date the District
Court, The Hague consequently granted leave to proceed in default of appearance against
the United Nations.
4. On 12 December 2007 the State of the Netherlands filed a motion in interim proceedings.
That motion sought a declaration of lack of jurisdiction of the District Court in respect of
the actions brought against the United Nations and (conditionally) leave for the State of the
Netherlands to appear as intervening third-party, or, alternatively, to join as a party with
the United Nations in the main proceedings.
5. The Association et al. entered a defence against the motions brought by the State of the
Netherlands, by statement of defence in the incident of 6 February 2008 and in the
pleadings of 18 June 2008. The defence will be referred to insofar as that is necessary in the
context of these grounds of appeal. The Association et al. maintains in this appeal all the

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 events
referred 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

acceptance of the status of the defendant as a party to the proceedings (see J.
Spiegel, Vreemde states voor the Netherlands Court, thesis 2001, page 31);
3. the logical order of legal reasoning. It is not possible to grant leave to proceed in
default of appearance where the jurisdiction to do so is absent.
24. Even the State of the Netherlands recognises under points 3.2 et seq. of the motion at first
instance that an ex officio review of the issue of jurisdiction must take place (against a non-
appearing international organisation). The result of that ex officio review is given with the
grant of leave to proceed in default of appearance, which is a correct result, in the view of
the Association et al. Given the above the State of the Netherlands should have been
declared non-suited in its interim motion, alternatively that motion should have been
dismissed.
25. Furthermore, it is incomprehensible that the District Court has held that the Court, in
granting leave to proceed in default of appearance, did not give a judgment on its
jurisdiction. That consideration is at odds with the correspondence cited above on the issue
of jurisdiction, the settled practice of the UN and known to the District Court regarding
appearance in legal proceedings, the cited literature, as well as the incomprehensible
assumption that a decision on granting leave to proceed in default of appearance could be
given where no jurisdiction exists. The fact that a decision is given regarding leave to
proceed in default of appearance does not entail – contrary to what the District Court held –
that no decision is given on the Court’s jurisdiction.
The reference to the docket (which lacks any grounds stated for a decision regarding
jurisdiction) is in this respect insufficient without further grounds being given, and they are
absent. The docket lacks any space for such grounds regarding the issue of jurisdiction. As
stated above, leave to proceed in default of appearance implies Jurisdiction. In this
connection the Association et al. points out that the docket also contains no considerations
regarding, for example, the validity of the writ of summons. The grant of leave to proceed
in default of appearance here says enough. At the very least it has the semblance that the
District Court was guilty of following a line of reasoning to a result, which is insupportable.
Ground of appeal 4
26. The District Court has reasoned erroneously under legal consideration 5.3 of the contested
judgment.

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, number
3, 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 relevant
interest 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 a
degree 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 13
February 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), the
principal 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 constitute
applicable 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 common
ends.’
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 is
said 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 on
Treaties. 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 on
this 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, a
review 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 the
utmost 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 much
more 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 not
have 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: demilitarisation
agreement 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 the
climate 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 Genocide
Convention, 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 directly
enforceable 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 physical
or 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 (see
further 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 contradiction
with 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 with
it, 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 obligations
under 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 exceptional
restrictions 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 it
has 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 the
Community 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 human
rights 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 the
United 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.
M.R. Gerritsen
Dr. A. Hagedorn
J. Staab
S.A. van der Sluijs

Srebrenica Genocide Survivors V The State of Netherlands, The Statement of Appeal

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Srebrenica Genocide Survivors V The State of Netherlands, The Statement of Appeal

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Case number : 200.022.

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

Attorneys: M.R. Gerritsen

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Explanation of ground of appeal 2

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Explanation of ground of appeal 3

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Explanation to ground of appeal 5

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

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Interest already sufficiently safeguarded by Article 44 CCPr

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Explanation to ground of appeal 6

58. Under legal consideration 5.7 the District Court held :

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And erroneously considered under legal consideration 5.12 that:

And further erroneously considered under legal consideration 5.13 that:

Explanation to ground of appeal 7

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Functional versus absolute immunity

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

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Basis of the immunity of the UN under international law

‘The Purposes of the United Nations are:

Article 105 paragraph 1 of the UN Charter states:

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

Obligation to waive immunity

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Significance of Section 29 Convention

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Interpretation in accordance with the Vienna Convention on Treaties

86. Article 31 paragraph 1 of the Vienna Convention on Treaties reads:

Article 32 of the Vienna Convention on Treaties reads:

‘Recourse may be made to supplementary means of interpretation, including the

a) leaves the meaning ambiguous or obscure; or