Case number :10/04437

Cause list date :17 June 2011

EXPLANATORY MEMORANDUM

Concerning:

1. the Association Mothers of Srebrenica,

registered office in Amsterdam, the Netherlands,

2. Mrs Sabaheta Fejzić,

resident in Vogošća (Municipality of Sarajevo), Bosnia-Herzegovina

3. Mrs Kadira Gabeljić,

resident in Vogošća (Municipality of Sarajevo), Bosnia-Herzegovina;

4. Mrs Ramiza Gurdić,

resident in Sarajevo, Ilijaš, Bosnia-Herzegovina;

5. Mrs Mila Hasanović,

resident in Sarajevo, Bosnia-Herzegovina;

6. Mrs Kada Hotić,

resident in Vogošća (Municipality of Sarajevo), Bosnia-Herzegovina;

7. Mrs Šuhreta Mujić,

resident in Sarajevo, Bosnia-Herzegovina;

8. appellant nr. 8,

resident in Sarajevo, Ilidža, Bosnia-Herzegovina;

9. Mrs Zumra Šehomerović,

resident in Vogošća (Municipality of Sarajevo), Bosnia-Herzegovina;

10. Mrs Munira Subašić,

resident in Vogošća (Municipality of Sarajevo), Bosnia-Herzegovina;

11. appellant nr. 11,

resident in Sarajevo, Bosnia-Herzegovina;

Appellants in the appeal in cassation on the main issue

Against:

1. The State of the Netherlands (Ministry of Defence and Ministry for Foreign Affairs), with

its seat at The Hague

Respondent in the appeal in cassation on the main issue

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 in the appeal in cassation;

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

Appellants in the interim appeal in cassation (hereinafter: the Association and others) present

the following the Explanatory Memorandum.

I. Introduction

1. This case presents a fundamental choice. It is the choice between respect for

fundamental legal principles or the granting of facto absolute immunity to an

international organisation that is considered to be jointly responsible for the first

genocide on European soil since the Second World War.

2. The separation of powers constitutes one of the pillars of a constitutional state. The

legislative, the executive and the judicial power must remain in balance with each other

and counterbalance each other. One of the fundamental principles that pertains in this

equilibrium is the ‘rule of law’: the principle that no-one is above the law. The

constitutional state guarantees that rights are not illusory. It is self-evident that in a

constitutional state also governments and organisations are not above the law and and

that legal proceedings can be brought against them.

3. The essence of the constitutional state principle is that every one is subject to the law

and if necessary must answer to the court for its conduct. A consequence of this

principle is the right of access to the court, as is stated in, inter alia, Article 6 ECHR.

Moreover, the principle of effective legal protection is also part of the constitutional

state principle and as such is recognised as a fundamental human right. These

characteristics of the constitutional state are internationally designated as the ‘rule of

law’ and ‘accountability’: the attribution of the conduct and in the present case the

obligation of an international public organisation to give account of that conduct and to

be held responsible and accountable for that conduct.

4. The UN is the most powerful intergovernmental organisation in the world. The UN

commands exceptionally extensive powers in the areas of peace and security. With great

power comes great responsibility. On paper the UN is guided by lofty principles. In

practice the UN is in fact a political organisation where decisions are primarily

dependent on the political will of the member states. What is more, a considerable

number of the 192 member states of the UN are guilty of the violation of fundamental

legal principles. A large number of the citizens of the relevant countries are at the

mercy of arbitrariness, lawlessness, corruption and repression.1

5. The UN claims de facto absolute immunity (at least, the State of the Netherlands

(hereinafter: the State) does so on behalf of the UN). That is at odds with Article 105 of

the UN Charter that proceeds from the basis of a functional immunity. Moreover,

absolute immunity is contrary to the principle of the constitutional state. In addition to

that, the obligation of the UN to provide an appropriate mode of dispute settlement, as

laid down in Article VIII, Section 29 of the Convention on the Privileges and Immunities of

the United Nations (hereinafter: Convention), has since 1946 not been fulfilled. In this

the UN puts itself above the law. Under the circumstances prevailing in this case it is for

the court to provide counterbalance to the contention of the UN (and of the State, that

in this case invokes the immunity of the UN) and to respect the fundamental rights of the

Association and Others by now offering access to justice.

6. It is this desired absolute immunity of the UN that the State under the circumstances as

outlined values so much more highly than the fundamental principles of the

constitutional state such as effective legal protection and the right of access to the

court. Indeed, the State has argued in these proceedings for the absolute immunity of

the UN. The State does not wish the UN to ever have to answer before the court.

7. It will be argued below by reference to the Motion for Appeal in Cassation that

application of the law in this case necessitates that no immunity from jurisdiction may

be accorded to the UN. The Association and Others have set out their objections to the

contested ruling in the Motion for Appeal in Cassation. Certain matters will be further

expounded in explanation thereof. Repetition in respect of the Motion for Appeal in

Cassation and the Statement of Reply in the Interim Motion for Appeal in Cassation will

1 The 2010 Yearbook of Amnesty International reports the fact that torture and other forms of mistreatment

occur in 111 countries, that in 55 countries there is no honest judiciary and in 96 countries the people are not permitted to express themselves freely

be avoided as far as possible without thereby detracting from the content of the Motion

for Appeal in Cassation.

8. The Association and Others will deal under point II with the the scope of the immunity of

the UN, and conclude that such immunity is functionally confined and that restrictions to

immunity are possible. Then the Association and Others will argue that under certain

circumstances the UN is obliged not to invoke immunity (waiver). In addition, since 13

February 1946 the UN is under an obligation to provide an appropriate mode of dispute

settlement. Where no waiver is made and the obligation to provide an appropriate mode

of dispute settlement has not be fulfilled, then the court must safeguard the right of

access to justice. The Association and Others will also discuss the reports of the

International Law Association, which reports lend support to the position of the

Association and Others. Thereafter, the Association and Others will deal under point III

with the preliminary questions that will arise for consideration should this Court be

minded to uphold the contested judgment.

II. Functional immunity2

9. For a correct interpretation of the concept of immunity it is important to recognize that

the UN enjoys functional immunity. That means that immunity does not extend any

further than is necessary for the proper functioning of the UN (Article 105 paragraph 1

UN Charter). Functional immunity does not equate with absolute immunity. A distinction

is drawn in the extensive literature and case law on the subject to the extent that

immunity concerns the immunity of States, diplomats, international organisations or

their officials. What is at issue here is the immunity of an international organisation.

Sometimes the literature and case law on other types of immunity are also relevant.

10. The contested ruling of the Court of Appeal (as can be read under legal considerations

4.2, 4.4 and 4.5) amounts to the contention that the most far-reaching form of immunity

must be accorded to the UN. Rather, it is the opposite view that emerges from the

creation of the UN Charter and the literature on that.

11. With regard to the fact that the immunity of the UN is restricted to being functional, the

Association and Others refer to what they have already argued in the Motion for Appeal

in Cassation. Additionally, they refer to the literature that is discussed under this or

2 The functional character of the immunity of the UN is raised in the Motion of Appeal in Cassation under

numbers 4.12, 4.13, 5.2, 5.13, 9.2 and 9.3

subsequent marginal numbers, literature that was published at the time of the creation

of the UN Charter or has a bearing on that creation:3

‘The functional principle as the basis seems now almost universally recognized.’

And further:4

‘Recognizing the doctrinal confusion (added by attorneys: between almost

absolute immunity for diplomats and the functional restricted immunity for international

organisations) the drafters of the UN Charter sought so to avoid by categorically adopting

functional, rather than diplomatic, immunities for the organization and its officials.’

12. Sir Hartley Shawcross, Attorney-General of the United Kingdom spoke in his address to

the General Assembly of the UN on 13 February 1946 as follows:5

‘It is important that in setting up this great new international organisation we should not

ask for it to possess privileges and immunities which are greater than those required for

its efficient organisation. (…) The Charter provides that the immunities and privileges to

be granted should be such as are necessary for the fulfillment of its purposes, and that is

exactly what this important and historic document does.’

13. The director of the Development and Codification of International Law Division, United

Nations Secretariat, at the time Representative of China during the first session of the

General Assembly of the UN in 1946, Dr. Yuen-li Liang, was also then a Member of the

Sub-Committee that drew up the Convention. He concluded:6

‘The United Nations has asked only for the privileges and immunities necessary for the

fulfillment of its purpose and for the exercise of its functions.’

14. The form of immunity provided for the UN constituted a break with the form provided

for the League of Nations:7

3 J.L. Kunz, Privileges and Immunities of international organizations, The American Journal of International

Law. Vol. 41, no. 4, Oct. 1947, p. 847 4 V.L. Maginnis, Limiting diplomatic immunities: lessons learned from the 1946 convention on the privileges

and immunities of the United Nations, Journal of International Law, 2002-2003, p. 1011 5 Official Records of the First Session of the General Assembly, Plenary Meetings of the General Assembly,

January 10 - February 14, 1946, p. 452 6 Yuen-li Liang, International Law Quarterly 1948, p. 602 7 J.J. Kunz, loc. cit., p. 839

‘Contrary to the period 1919-1939 the standard has now been changed again, (…).

Instead of the formula of “diplomatic privileges and immunities,” article 105 of the

Charter of the UN grants “such privileges and immunities as are necessary of the

fulfillment of its purposes”.’

15. The principle that immunity should go no further than functional necessity – and that

more far-reaching immunity is also undesirable - has also been argued for in more recent

literature:8

‘(…) that absolute immunity is unnecessary and undesirable. (…)

Immunity protections are intended to safeguard the efficient functioning of an

organization. (…) In accordance with this principle, the Charter gives the UN and its

officials a limited ‘functional’ immunity.’

16. Article 105 of the UN Charter (including therein the functional immunity of the UN) is

elaborated in the Convention. It follows from Article 103 UN Charter that the UN Charter

has precedence over the Convention. That means that the Convention cannot confer

greater rights on the UN than that which is accorded to the UN in the Charter.9 In the

Convention the reverse of the coin of immunity is further laid down for the UN under

Article VIII, Section 29, namely, the obligation itself to provide access to justice. It is not

disputed in these proceedings that the UN has not brought about the above mentioned

access to justice.10

17. When creating the UN Charter and the Convention the member states of the UN

consequently justified the fact that immunity may not be absolute and that there is a

need for equilibrium between, on the one hand, the need for a proper functioning of the

organisation and, on the other, the rights of third parties who are affected by the

organisation. The UN is subject to the law and has the safeguarding and maintenance of

human rights as one of its objectives. The UN Ombudsperson in Kosovo wrote in

connection with the tension between immunity and the right of access:11

‘The fundamental precept of the rule of law (…) that the executive and legislative

authorities are bound by law and are not above it.’

8 V.L. Maginnis, loc. cit., p. 990 9 See, number 4.9 of the Motion of Appeal in Cassation 10 See also, Consideration 5.11 of the contested judgment 11 Ombudsperson Institution in Kosovo, Special report no. 1 on the compatibility with recognized international

standards of UNMIK regulation no. 2000/47 on the status privileges and immunities of KFOR and UNMIK and their personnel in Kosovo, 18 August 2000, paragraph 24, cited in Rawski, loc. cit., p. 124

18. The necessity for a counterweight (in the English language literature on the subject

designated by the term counterbalance) has been given form in the Convention in two

ways, namely, (1) by not claiming of immunity (waiver) and (2) the establishment of the

access to justice provided for in Article VIII, Section 29 of the Convention:12

‘The lesson to be learned from the UN Convention is that it fully implements functional

immunity, but at the same time provides additional safeguards to assure that this limited

immunity is not abused. Thus, these bilateral agreements, to be truly useful and to

provide the injured with recourse, must provide the additional protection of waiver and

settlement conferred by the UN Convention.’

19. Where waiver of immunity and the obligation to establish access to justice have not been

pursued or given substance to, respectively, it is for the civil court to provide

counterbalance and thus to restore the equilibrium, and to do so by application of the

right of access to the court as laid down in Articles 6 ECHR, 14 ICCPR and 47 Charter of

Fundamental Rights of the EU.

20. The Association and Others also point out that should the jurisdiction that the civil court

thus acquires – because of the absence of a waiver and the failure to provide an effective

access to justice by the UN – influence the functioning of the UN, the UN still has the

power to create access to justice within the meaning of Section 29 of the Convention. As

soon as an appropriate mode of dispute settlement e exists a claim by the UN to

immunity of jurisdiction must in principle be upheld. Should a breach in the principle of

functional immunity be seen in the adoption of jurisdiction, then it should be considered

that the UN itself is responsible for the fact that it, already 65 years after the obligation

in the Convention was laid down, has not established any access to justice.

21. The historical explanation of the functional immunity of the UN shows that a solution

exists to the conflict between the immunity and the constitutional state principle.

Counterbalance is provided by waiver and provision of a separate access to justice.

Where both are absent, access to the civil court should be provided. For that matter the

UN itself also concedes in its own publication that it subscribes to the constitutional

state principle, at least to the rule of law and the principal of accountability:13

12 V.L. Maginnis, loc. cit., p. 1023 13 (S/2004/616) Report of the Secretary-General on the Rule of Law and Transitional Justice in Conflict and

Post-Conflict Societies. See also, the website of the UN on the rule of law: http://www.un.org/en/ruleoflaw/index.shtml

‘For the United Nations, the rule of law refers to a principle of governance in which all

persons, institutions and entities, public and private, including the State itself, are

accountable to laws that are publicly promulgated, equally enforced and independently

adjudicated, and which are consistent with international human rights norms and

standards. It requires, as well, measures to ensure adherence to the principles of

supremacy of law, equality before the law, accountability to the law, fairness in the

application of the law, separation of powers, participation in decision-making, legal

certainty, avoidance of arbitrariness and procedural and legal transparency.’

In other words: according to the UN itself a public organisation functions well only when

the rule of law applies to everyone and the principle of accountability applies. The

Association and Others fail to understand in that regard the judgment of the Court of

Appeal as expressed under legal consideration 5.7. The judgment of the Court of Appeal

that the immunity of the UN must be as robust as possible is erroneous.14 After all, the

applicability of the rule of law and the principle of accountability ensure the functioning

of an organisation, according the UN itself. This has at the very least the dubious

appearance that the UN (and that includes also: the State) observes legal principles only

if and to the extent that it suits. The court must not endorse that and the judgment of

the Court of Appeal should be quashed.

Waiver of immunity15

22. Just as in the case of diplomatic immunity international organisations also have the

possibility to waive immunity. The possibility and under certain circumstances the

obligation of waiver of immunity is laid down in respect to officials and representatives

(Article IV, Section 14 and Article V, Section 20 of the Convention), unlike the case with

the UN itself. That is not to say, however, that waiver is impossible in regard to the

immunity of the UN. Indeed, the Convention does not exclude the possibility of waiver.

The prohibition on waiver as laid down in Article II, Section 2, Convention is expressly

restricted to enforcement.

23. It is recognised also in the literature that waiver (in addition to the provision of a

separate access to justice) is a possible way of offering a counterbalance, so that

equilibrium is restored:16

14 Part of ground of appeal in cassation 4, discussed under points 4.14 and 4.15 of the Motion of Appeal in

Cassation 15 See, inter alia, numbers 4.11, 5.14, 9.2 and 9.4 of the Motion of Appeal in Cassation 16 J.L. Kunz, loc. cit., p. 852

‘As international organizations are nationals of no sovereign state the counterbalance in

the case of diplomatic immunities – recall, civil and criminal jurisdiction of the sending

state – is here lacking. (…) The oldest way of effecting a counterbalance, taken from the

law of diplomatic agents, is the waiver of immunity.’

24. As the Association and Others have argued (see argument 9), the UN does indeed under

certain circumstances – which occur in the present case – have the obligation to waive

immunity:17

‘Some hold that international human rights law constitutes a “superior norm” to the law

on immunity of international organizations, and as a consequence, waiver is required in

all cases of serious human right violations.’

25. There is here a restrictive interpretation of functional immunity and a moral obligation

to waive immunity, and it arises here in the present case:18

‘(…) that immunities should nonetheless be interpreted through the lens of the Charter

which envisions granting only the minimum immunities necessary. The UN should narrow

immunities to a reasonable definition of ‘official duty’, explicitly excluding serious

violations of human rights and criminal law, and only invoke immunity protections when

failing to do so would truly endanger the success of the mission. When a violation occurs

during the conduct of official duties, the SG should consider a waiver of immunity.’

Access to justice according to Section 29 Convention19

26. The necessity for a means of securing access to justice was expressed in a commentary

as early as 1948:20

‘There appears to be a need for some kind of international tribunal which can determine

rights between the organisation and persons having claims against it. Section 29 of the

General Convention provides that the United Nations shall make provisions for

appropriate modes of settlement of disputes arising out of contracts or other disputes of

a private law character to which the United Nations is a party.’

17 F. Rawski, loc. cit., p. 114 18 F. Rawski, loc. cit., p. 128 19 See, the Motion of Appeal in Cassation under numbers 3.3, 4.9, 4.10, 4.11, 5.2, 7.2 and 9.5 20 Liang, loc. cit., p. 585

27. Should the Secretary-General of the UN refuse to waive immunity, Section 29 of the

Convention becomes essential:21

‘Once the Organization conducts an investigation, makes a determination that functional

immunity protections apply, and refuses to waive immunity, there remains the question

of whether an alternative forum is available to resolve the dispute. Section 29 of the

Convention calls for an “appropriate mode of settlement” in disputes “of a private law

character to which the United Nations is a party,” (…).’

28. The possibility of finally being called to give account as a condition for immunity being

accorded is recognised in the earliest literature on the subject of the immunity of the

UN:22

‘It must be remembered that international organizations are immune in most cases only

from local jurisdiction but not from local laws which they are, therefore, in duty bound

strictly to observe. In torts cases this counter-balancing can be done by obligatory

insurance against third-party risks, as now provided by part IV of the UN General

Convention.

Already writers of the inter-war period have proposed the creation of special fora for the

settlement of conflicts in which international organizations are involved. While these

suggestions have not as yet (addition of counsel: in 1947) been followed, section 20a

(addition of counsel: 29 is apparently intended) of the UN General Convention prescribes

that the UN shall make provisions for appropriate modes of settlement of disputes arising

out of contracts or other disputes of a private law character to which the UN is a party.’

29. Contrary to the judgment of the Court of Appeal, it is broadly accepted in the literature

that in the event of litigation the UN must ensure an appropriate mode of dispute

settlement:23

‘Indeed, they may only use their immunity in order to avoid litigation in a national court

or some other inappropriate forum; but if they cannot resolve a dispute, for example

with a tort claimant, they must offer some other suitable means of settling the matter,

such as by arbitration.’

21 F. Rawski, loc. cit., p. 115 22 J.L. Kunz, loc. cit., p. 852 23 P.C. Szasz, the United Nations legislates to limit its liability, The American journal of international law,

1987, p. 739

30. And furthermore:24

‘However, under one of the provisions of the Convention (addition of counsel: Section

29) when the United Nations or one of its officials enjoying immunity is a party to a

dispute of a private-law character, the United Nations is obliged to provide for

appropriate means of settlement in such a dispute.’

31. With regard to litigation involving officials – but equally applicable to the UN itself – the

following has been observed in the literature:25

‘Thus, the Convention provides a two-tiered system in which those injured by the UN

officials have recourse. They may either seek a remedy through national courts if the

Secretary-General waives immunity or settle under the provisions of the UN settlement

policy when immunity has not been waived.’

Right of access to the court 26

32. Where immunity has not been waived and the UN has not provided an appropriate mode

of dispute settlement the right of access to the court should prevail over the claim of

immunity from jurisdiction.

33. The right of access to the court is one of the foundations of the constitutional state, a

foundation that is laid down in all important conventions on human rights:27

‘The ICCPR, the American Convention on Human Rights, and the [European] Convention

for the Protection of Human Rights and Fundamental Freedoms all require States Parties

to guarantee victims effective recourse to a competent tribunal, (…).’

34. The Institut de Droit International determined as early as 1957 that the right of access to

an independent court also applies specifically to international organisations:28

24 V.P. Nanda, Accountability of international organizations: some observations, Journal of International Law,

2004-2005, p. 381 25 V.L. Maginnis, loc. cit., p. 1020 26 See, the Motion of Appeal in Cassation under numbers 3.4, 3.5, 4.1, 4.4, 4.8, 4.14, 4.15, 4.16, 5.2, 5.3, 5.6,

5.12, 7.2, 7.3, 7.5, 7.6, 8.3 and 9.5 27 J. Murray, Who will police the peace-builders? The failure to establish accountability for the participation

of united nations civilian police in trafficking of women in post-conflict Bosnia and Herzegovina, Human Rights Law Review 2002-2003, p. 516

28 Annuaire de l’Institut de Droit International, 1957, Vol. 47, II, p. 478, III, 1

‘(…) for every particular decision of an international organ or organization which involves

private rights or interests, there be provided appropriate procedures for settling by

judicial or arbitral methods juridical differences which might arise from such a decision.’

35. It is raised under points 3.2 et seq. of the the Motion for Appeal in Cassation that

immunity from jurisdiction does not have to be accorded where no alternative mode of

dispute settlement is available. This ruling of the EHRM in the Case Waite & Kennedy29 is

confirmed by the Netherlands Hoge Raad (Supreme Court of Cassation) in HR 23 October

2009 and by the courts in Switzerland, Italy, France, Belgium and Germany.30

36. The authoritative reports of the International Law Association (hereinafter: ILA) provide

an extensive legal-theoretical basis for the concept of accountability of international

organisations, that examines the rules that arise from this theoretical framework.31 The

ILA is the most important international non-governmental organisation in the field of

international law, and possesses an advisory role to the UN, among others. The

Association and Others will discuss these reports because also these reports provide

support for the propositions of the Association and Others that an international

organisation may not shelter itself behind immunity, that an international organisation is

accountable and liable for its conduct - certainly where the violation of human rights is

concerned - and that access to the court must be safeguarded.

37. The ILA formulates the basic premise as being that in international law:32

‘(…) there is no reason at all, as a matter of principle, why international organizations

could or should not be held accountable for disadvantages and repercussions resulting

from their acts or omissions and normally based upon the authority and power granted.’

38. The ILA distinguishes three levels of accountability in ascending degrees of importance:33

‘- [First level] the extent to which international Organisations, in the fulfillment of

their functions as established in their constituent instruments, are and should be

subject to, or should exercise, forms of internal and external scrutiny and

monitory, irrespective of potential and subsequent liability and/or responsibility;

29 Treated in the Motion of Appeal in Cassation under numbers 3.4, 3.5, 4.4, 4.5, 4.7, 4.15, 7.4 and 9.4 30 Cf. notes 41 through 47 in the Motion of Appeal in Cassation 31 International Law Association, Taipei Conference 1998 (first report), London Conference 2000 (second

report), New Delhi Conference 2002 (third report), Berlin Conference 2004 (final report), Accountability of International Organizations

32 ILA, first report, p.597 33 Final Report, p. 5

- [Second level] tortuous liability for injurious consequences arising out of acts or

omissions not involving a breach of any rule of international and/or institutional

law (e.g. environmental damage as a result of lawful nuclear or space activities);

- [Third Level] responsibility arising out of acts or omissions which do constitute a

breach of a rule of international and/or institutional law (e.g., violations of

human rights of humanitarian law, breach of contract, gross negligence, or as far

as institutional law is concerned acts of organs which are ultra vires or violate

the law of employment relations).’

39. With reference to the first level the ILA made 48 recommendations that an international

organisation ought to comply with. The ILA characterises these rules as being not

necessarily legal obligations.34 At the second level the international organisation is

obliged to comply with human rights and international law, in particular in situations

where the international organisation employs force, temporarily takes control of an

area, or in cases of peace-enforcement.35 At the third level the ILA provides (a) rules for

the international legal accountability of an international organisation, (b) the attribution

of unlawful conduct of an international organisation to States and (c) the attribution of

unlawful conduct to international organisations.36

40. With reference to the international legal accountability of an international organisation

(in the following citations as: IO) the ILA rules:37

‘No situation should arise where an IO would not be accountable to some authority for an

act that might be deemed illegal. The principle that IO-s may be held internationally

responsible for their acts is nowadays part of customary international law.’

41. In passing the Association and Others point out the following. In the Final Report the ILA

lists by way of example the circumstances in which an international organisation acts

unlawfully.38 In addition, the ILA also specifies circumstances that breach a ‘superior rule

of law’. Here the ILA lists: ‘the right to life, food and medicine of the individual or

guarantees for due process of law’. The right of access to the court is thus characterised

by the ILA as a superior rule of law, comparable to the right to life. The inestimable

importance of the right of access to the court is evident. What indeed is the worth of a

right if it cannot be enforced? In that case rights are illusory.

34 Final Report, p. 8 35 Final Report, pp. 22-25 36 Final Report, pp. 26-31 37 Final Report, p. 26 38 Final Report, p. 28

42. The ILA then extensively discusses the ‘remedies’ (legal actions arising from a violation

of a right) that are available, differentiated according to the different levels of

accountability.39 The remedies at the first level generally possess a non-legal character

and here require no further discussion. The ILA formulates principles for the second and

third levels:40

‘1. As a general principle of law and as a basic international human rights standard, the

right to a remedy also applies to IO-s in their dealings with states and non-state parties.

Remedies include, as appropriate, both legal and non-legal remedies.’

In passing the Association and Others refer to the quotation of Patrick Robinson, then

President of the ICTY, in his address of 8 October 2009 to the General Assembly of the

UN cited on appeal (number 31 of the Pleading Notes). He dwelt on the fact that no

access to justice was open to the victims of the war in the former Yugoslavia to obtain

compensation, despite the fact that they had a right under international law to such

access. (http://www.icty.org/x/file/press/pr_attachments/pr1335a.pdf):

‘(…) Currently, there is no effective mechanism by which victims can seek compensation

for their injuries, despite the fact that their right to such compensation is firmly rooted

in international law. (…)

But to date, nothing has been done, and I fear that failure by the international

community to address the needs of victims of the conflicts that occurred in the former

Yugoslavia will undermine the Tribunal’s efforts to contribute to long-term peace and

stability in the region. It is for this reason that I implore you to support the

establishment of a claims commission as a method of complementing the Tribunal’s work

by compensating victims of crimes in the former Yugoslavia.’

43. The right to a remedy should not, according to the ILA, be an empty shell:

‘2. Remedies should be adequate, effective, and, in the case of legal remedies,

enforceable.

3. A total lack of remedies would amount to a denial of justice, giving rise to a separate

ground for responsibility of the IO.’

39 Final Report, p. 32 et seq. 40 Final Report, p. 33

44. The explanation and argumentation given by the ILA to these rules lack nothing in clarity

and are as follows:41

‘In its First Report the Committee pointed out that the rules “will have to keep the

balance between preserving the necessary autonomy in decision-making of International

Organisations and guaranteeing that the International Organisations will not be able to

avoid accountability. (…) Under most human rights instruments the right to a remedy

includes both the procedural right of access and the substantive right to a remedy. The

right to a remedy may be seen as a norm of customary international law, one of the

essential features of which is that the parties are treated as equal. A comprehensive

remedial regime should address both individual and societal concerns and interest and it

should leave no loopholes at any level. (…) There is no reason why the imperative of the

protection of human rights should not permeate both primary and secondary rules for IO-

s. “It would be quite ironic to negate the rights of individuals on the assumption that

they might be incompatible with the functions of international organizations.”.’

45. The ILA then referred in support to the Advisory Opinion of the ICJ of 13 July 1954 in

which ruling (concerning an employee of the UN) it was considered in respect of the

absence of any access to justice that it:42

‘(…) would be hardly consistent with the expressed aim of the Charter to promote

freedom for individuals and with the constant preoccupation of the UN to promote this.’

That the UN is obliged to comply with human rights treaties is recognised in the

literature:43

‘While the United Nations is not a party to international human rights treaties, it remains

subject to the customary international law of human rights in the execution of its

functions.’

(…)

‘The United Nations should be held to the same standards it is charged with

implementing and enforcing. Anything to the contrary compromises the legitimacy and

effectiveness of peace across the globe. (…) Impunity of peacekeepers is an affront to

the rule of law, (…)’

41 Final Report, p. 33 42 Effects of awards of compensation made by the UN Administrative Tribunal, Advisory Opinion of 13 July

1954, I.C.J. Reports, 1954, p. 57, also cited in the Motion of Appeal in Cassation under number 3.5 43 J. Murray, loc. cit., pp. 518 and 519

And furthermore:44

‘(…) the Security Council (…) cannot derogate from those international law norms that

have acquired the status of jus cogens, and must as well comply with customary

international law and general principles, embodying human rights and humanitarian law

norms.’

46. The ILA continues:45

‘The first important element is that the right to a remedy is widely considered to be a

general principle of law: individuals and groups of individuals can resort to a system of

protection comprising a wide variety of political, administrative and legal remedies when

their interests or rights have been effected by their national authorities. States and non-

state parties should be able to look for similar mechanisms in their dealings with IO-s,

including both the procedural right of access and the substantive right to a remedy.

Secondly, the right to adequate means of redress, in case of violation of rights, is a basic

international human rights standard, which should always prevail over the functional

needs of an IO.’

47. On the basis of the ILA reports over accountability it must be concluded that given the

gravity of the complaints delivered to the UN – including the most grievous violations of

human rights such as the failure to prevent genocide, mistreatment and rape, nor the

proper reporting of these crimes, as well as the active support given to deportation46 –

the UN should have waived immunity and voluntarily appeared before the court, and

should have provided an appropriate mode of dispute settlement. As none of that has

occurred the civil court should now offer access to justice. The District Court and the

Court have erroneously failed to do so.

III. Preliminary questions47

48. In the Motion for Appeal in Cassation the Association and Others requested the Hoge

Raad under argument 8, if and in so far as the Hoge Raad should consider upholding the

contested judgment and thereby confirm that no jurisdiction accrues to the the

Netherlands court regarding the claims brought against the UN, to refer preliminary

44 V.P. Nanda, loc. cit., p. 385 45 Final Report, pp. 33 en 34 46 See, the Motion of Appeal in Cassation, pages 5 through 8, with references 47 Subject of argument 8 of the Motion of Appeal in Cassation

questions to the European Court of Justice. The Association and Others will further

elaborate on this (provisional) request.

Necessary referral – access to the court and effective judicial protection

49. The Association and Others have in fact no access to a court in The Netherlands as the

District Court, The Hague, upheld on appeal by the Court of Appeal, The Hague,

declared itself to be without jurisdiction to hear the claims brought against the UN.48

50. The principle of effective judicial protection is recognised by the European Court of

Justice as a general principle of Community law.49 It is related to Articles 6 and 13

ECHR,50 and the principle is moreover codified in Article 47 of the Charter of

Fundamental Rights of the European Union. The case law on the principle of effective

judicial protection shows that there are a number of matters attaching to this principle.

First, there is the formal requirement that there must be an effective access to the

court, and, secondly, the substantive requirement that the actual organisation of the

national access is such that the rights deriving from European law can actually be

effectuated and if necessary enforced.51 The general principle of effective judicial

protection has been confirmed in various rulings of the ECJ, for example, regarding

provisional measures,52 the liability of Member States for violation of European law,53

and the ex officio application of rights deriving from European law.54

51. The institutions and Member States of the EU are also bound by fundamental rights.55 In

the absence of a legally binding community catalogue of fundamental rights the

European Court of Justice until December 2009 allowed itself to be influenced in its case

law by the constitutional traditions of the Member States and by various international

48 See, inter alia, argument 3 of the Motion of Appeal in Cassation 49 See, for the identification of this principle, Case C-222/84 Johnston v Chief Constable of the Royal Ulster

Constabulary, Jur. 1986, p. 1651, Consideration 18 50 ECJ EU Case 222/84, Johnston, Jur. 1986, p. 1651 51 R.J.G.M. Widdershoven, M.J.M. Verhoeven, S. Prechal, A.P.W. Duijkersloot, J.W. van de Gronden, B.

Hessel, and R. Ortlep, Derde evaluatie van de Algemene Wet Bestuursrecht. De Europese Agenda van de Awb (WODC), The Hague: Boom Juridische Uitgevers, 2007, p. 36

52 Case C-213/89 Factortame I, Jur. 1990, p. I-2433 53 Joined Cases C-6/90 and C-9/90, Francovich and Bonifaci v Italy, Jur. 1991, p. I-5357 54 C-430/93 Van Schijndel, Jur. 1995, p.I-4705. See also, S. Prechal, “Community Law in National Courts: the

Lessons from Van Schijndel”, CMLRev 35(1998), pp. 681-706 55 ECJ EU Case 5/88 Wachauf, Jur. 1989, p. 2609; ECJ EU Joined Cases C-20 and C-64/00, Booker Aquaculture,

Jur. 2003, p. I-7411

human rights conventions, such as the ECHR.56 According to settled case law of the

European Court of Justice fundamental rights are general principles of Community law.57

52. Following the entry into force of the Treaty of Lisbon on 1 December 2009 the Charter of

Fundamental Rights of the European Union has, according to Article 6, paragraph 1

Treaty of the EU, the same legal force as the other EU treaties, so that the consolidated

text constitutes a source of fundamental rights. Although the Charter was not yet

binding before 1 December 2009, it played an important role as a point of reference for

the protection of fundamental rights within the EU.58 Another important change,

introduced by the entry into force of the Treaty of Lisbon, is the fact that the EU will

formally accede to the ECHR (see Article 6, paragraph 2 Treaty of the EU).

53. The ECJ has itself declared at various times that ‘the Treaty has created a complete

system of legal remedies and procedures whereby the Court of Justice is charged with

review of the legality of acts of the institutions’.59 Within this complete and coherent

system it is not only the European Court that is charged with providing legal protection;

the national courts also play an important role. They must ensure the uniform

application of European law, for example, by not applying incompatible provisions, or, as

in the present case, by referring preliminary questions to the ECJ.60

54. The Association and Others draw attention to the the Kadi Cases of the Court of First

Instance and the ECJ.61 These judgments offer, in the view of the Association and

Others, important clues for the answers to the proposed preliminary questions on the

postulated immunity of the UN.

56 R.J.G.M. Widdershoven, M.J.M. Verhoeven, S. Prechal, A.P.W. Duijkersloot, J.W. van de Gronden, B.

Hessel, and R. Ortlep, Derde evaluatie van de Algemene Wet Bestuursrecht. De Europese Agenda van de Awb (WODC), The Hague: Boom Juridische Uitgevers, 2007, p. 38. See, for example, ECJ EU Joined Cases C-387/02, C-391/02 and C-403/02, Berlusconi, Jur. 2005, p. I-3565, Consideration 67

57 ECJ EU Case 29/69, Stauder, Jur. 1969, p. 419 58 The Charter recently played a greater role in the conclusions of A-Gs than in the rulings of the ECJ. See, for

example, the Conclusion of Ruiz-Jarabo Colomer of 12 September 2006 in Case C-303/05, Advocaten voor de Wereld, Jur. 2007, p. I-3633, Consideration 79. The first Case where the ECJ used the freedom explicitly to refer to the Charter is ECJ EU Case C-540/03, Parlement t. Raad, Jur 2006, p. I-5769. Later references by the ECJ to the Charter are to be found in, inter alia, Case C-450/06, Varec SA v Belgium, Jur. 2008, p. I-0000 and Case C-275/06, Promusicae, Jur. 2008, p. I-0000

59 See, for example, Case 294/83, Les Verts v Parliament, Jur. 1986, p. 1339, Consideration 23 60 See, inter alia, S. Prechal, “National courts in EU judicial structures”, Yearbook of European Law (25),

2006, pp. 429-450 61 Treated in the Motion of Appeal in Cassation under numbers 3.4, 8.1, 8.3 and 8.5

55. Advocate-General Poiares Maduro in his conclusion to the Kadi Case put forward a

Solange Cases argument62 to resolve the lacunas in legal protection at UN level:63

‘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.’

56. Although that view of the Advocate-General was not expressly followed by the ECJ, it did

consider that:64

‘[i]n 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.

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.’

57. It is precisely because there is no constitutional court in The Netherlands that it is

important that the Hoge Raad refers this type of question that concerns the

interpretation of a European fundamental right, a question essentially of a constitutional

nature, to the ECJ.

62 Following the German Bundesverfassungsgericht (Bverfg 37, 271, “solange I”), and the ECHR (30 June 2005,

Bosphorus v Ireland, Appl. 45036/98, ECHR 2005-VI) 63 Conclusion of AG Poiares Maduro, Joined Cases C-405/05 P and C-415/05 P, 28 January 2008, Consideration

54 64 Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat, Jur. 2008, p. I-6351, Considerations 321-322

58. The judgment of the ECJ in the Kadi Case shows clearly that the rule of law, to which

the right to effective legal protection and access to a court belong, possesses an

extremely important and autonomous position in the European legal system, and that

acts of the UN cannot be regarded as supraconstitutional.65

59. It is true that Article 17 of the Constitution of The Netherlands states that ‘No one may

be prevented against his will from being heard by the courts to which he is entitled to

apply under the law’, but that Article does not offer a right of access to a court that is

comparable with the guarantees of the ECHR, the ICCPR or European law.66 The

Association and Others of necessity appeal to Article 6 ECHR, Article 14 ICCPR and the

European principle of effective judicial protection, which contains within it the right of

access to a court.67

60. The obligation to make use of the possibility to refer a preliminary question rests upon

the national court when:

- a claim is made to the European principles of effective judicial protection and access

to a court, which are comprised in the rule of law at national, European and

international level;

- questions are presented that are of essential significance and possibly have radical

consequences for legal protection and legal development;68

- and the possibility exists by means of a preliminary reference to the ECJ to request

interpretative assistance, when at national level such assistance, for example, by means

of constitutional review by a constitutional court, does not exist.69

The jurisdiction of the ECJ to consider the preliminary reference

65 See, for a discussion of the Kadi rulings, inter alia, J.S. Vara, “The Consequences of Kadi: Where the

divergence of opinion between EU and international lawyers lies?”, European Law Journal (2) 2011, p. 252-274; E. de Wet, “The role of European courts in the development of a hierarchy of norms within international law: evidence of constitutionalism?”, European Constitutional Law Review (5) 2009, p. 284-306

66 See, page 61 of the Report of the Staatscommissie Grondwet (State Commission on the Constitution) 67 See, argument 3 of the Motion of Appeal in Cassation 68 See, the Report on the initiative of the Netherlands Raad van State (Council of State) by the Vereniging van

Raden van State (Association of Councils of State) and highest administrativev courts of the EU and the Network of Presidents of the highest courts in the EU (Juradmin) on the operation of the preliminary procedure, published in Newsletter no. 20, 2008, available for consultation via www.juradmin.eu. Cf. Also, the Report of the Hammerstein Commission on the strengthening of the case law of the Hoge Raad (on appeals in cassation to be received) “in the interest of the unity and development of law”. See also, A.W.H. Meij in his address, “Kringen van coherentie – over rechtspraak in de context van globalisering”, Utrecht, 29 May 2009

69 See also, the plea of A.W.H. Meij for constitutional review by a constitutional court in his address, “Kringen van coherentie – over rechtspraak in de context van globalisering”, Utrecht, 29 May 2009

61. In the view of the Association and Others the ECJ has jurisdiction to answer the proposed

preliminary questions. The Association and Others elaborate on that position as follows.

62. On the ground of Article 267 TFEU the ECJ has jurisdiction to give preliminary rulings

concerning the interpretation of the Treaties (defined in the TFEU as including the

Charter of Fundamental Rights of the EU), if a question concerning the interpretation of

the European law principle of effective judicial protection is raised before a court of one

of the Member States, where such court deems a ruling on such point to be necessary to

enable the giving of a judgment.

63. Besides the fact that the right to effective legal protection and access to the court is a

recognised general principle of European right, the Charter of Fundamental Rights of the

European Union, in which this principle is codified in Article 47, has received the same

force of law as the other EU treaties since the entry into force of the Treaty of Lisbon on

1 December 2009 in accordance with Article 6, paragraph 1 EU. A referral can therefore

also be made to the ECJ concerning the interpretation of this fundamental right.

64. The ECJ normally emphasizes that it is for the national court to determine whether the

facts of the case before it render the preliminary question necessary. The ECJ refrains

from any judgment concerning the facts of the case and the reason for the referral.70

The ECJ has the final say on its own jurisdiction.

The ECJ generally declares itself to be without jurisdiction regarding hypothetical

questions, where the question is not relevant is for the resolution of the actual dispute,

where the questions are not stated with sufficient clarity, where the facts are

insufficiently clear, or if the right under European law ‘evidently’ is not applicable to

the facts or the case.71 It will be shown below that none of these situations presents

itself here.

65. The questions to be referred to the ECJ are not merely hypothetical. In fact, the

questions proposed by the Association and Others are specific and concern a

fundamental issue.

66. The case of the Association and Others falls within the scope of application of European

law. The contested immunity of the UN in this case has as a result that access to the

court would be excluded in all Member States of the EU. It is true that in the present

70 P. Craig and G. De Búrca, EU Law – Text, cases and materials, 4th ed., Oxford : Oxford University Press

2008, p. 483. See, Case 6/64 Costa v. ENEL, Case 117/77 Pierik, and Case 35/76 Simmenthal 71 Case 244/80, Foglia II, Jur. 1981 p. 3045

case is one is concerned with a case before the Netherlands court brought by a

Netherlands association but the background and effects of the case are cross-border. If

the Association established in The Netherlands (and the other appellants in cassation)

are denied access to the court, Article 6 ECHR and the European law principle of

effective legal protection will be violated.

67. Furthermore, in the recent Zambrano Case72 the ECJ gave rulings on a number of

preliminary questions even though that case was regarded by the Commission and a

number of Member States as being an internal affair that did not fall under Community

law. It can be deduced in fact from the judgment of the ECJ that rights can be derived

from some principles, such as European citizenship, without the necessity for a border-

crossing situation, or another specific European dimension, other than the existence of

the fundamental right.73 The Association and Others state that, as that is so in respect of

a relatively new concept such as European citizenship, the same principle must apply all

the more in respect of the right to effective legal protection and access to the court,

given that these principles are of a more fundamental character than European

citizenship. The principle of effective legal protection is recognised indeed under

international law as a norm of jus cogens.74

68. The Association and Others are entitled to invoke European law, and more particularly

the European principle of effective legal protection and access to a court. First and

foremost, it cannot be disputed that the Foundation is established in The Netherlands

and that a number of the Mothers whose interests are promoted by the Foundation are

domiciled within the EU (amongst others in The Netherlands and Germany).75 The

operation of the European principle of effective legal protection is not confined to

natural persons; legal persons can also invoke this principle.76

69. Finally, the Association and Others point out that a contrary interpretation would lead to

a situation in which two categories of litigants would exist, namely, those of EU

residents with the right of access and non-residents not having the right of access. Such

72 N. Saanen-Siebenga, “Het (naderende) einde van de interne situatie”, Nederlands Tijdschrift voor Europees

Recht (5/6) 2006, p. 101 73 ECJ EU 8 March 2011, Case C-34/09, Ruiz Zambrano, Jur. 2011, not yet published 74 See, Joined Cases C-402/05 P and C-415/05 P, Kadi and Al Barakaat, Jur. 2008, p. I-6351, Consideration

335. See also, the judgment of the Court of First Instance Case T-315/01, Kadi and Al Barakaat, Jur. 2005, p. II-3649, Consideration 277-291, in which is confirmed that the right of effective legal protection and access to a court are norms of jus cogens

75 See also, under number 4.2 of the Motion of Appeal in Cassation, as well as number 285 of the writ of summons at first instance; the relevant list of interested parties together with their bio-data was sent by post of 4 October 2006 to the Netherlands State and the UN

76 See also, the judgment of the ECHR in Autronic, 22 May 1990, Appl. 12726/87. See also, Case C-279/09, DEB Deutsche Energiehandels- und Beratungsgesellschaft, Jur. 2010, not yet published

a system would be unacceptable. The principle of effective legal protection is addressed

to the court. For the application of that Article it is irrelevant who appears before the

court or where that person is domiciled or resident.

Conclusion

70. Every legal consideration in this case argues for the acceptance of jurisdiction by the

Netherlands court. Indeed, the UN erroneously failed to avail itself of the privilege of

waiver and has not provided an appropriate mode of dispute settlement prescribed by

the UN. The constitutional state principle also applies to the UN and it should appear

before the Netherlands court to answer in the present case. The UN may not be above

the law. Even the UN itself has recognised that implementation of the principle of

accountability is a condition of the proper functioning of the organisation. In so far as

these arguments do not lead to the acceptance of jurisdiction and to the quashing of the

contested judgment, the Association and Others have expounded that referral of

preliminary questions is possible and required. As a prelude to that the Association and

Others have stated that under the circumstances of the case it follows also from the

perspective of European law that legal protection should be provided to the Association

and Others.

71. The Association and Others express the hope and the confidence that the legal

arguments and not the political considerations will prevail in this such exceptional case.

This case is prepared by:

M.R. Gerritsen

Dr. A. Hagedorn

J. Staab

S.A. van der Sluijs