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Mothers of Srebrenica v The Netherlands and the UN, LJN: BW1999, Dutch Supreme Court, 13 April 2012 and Stichting Mothers of Srebrenica and Others against The Netherlands, App. No. 65542/12, European Court of Human Rights, 11 June 2013

Aleksandar Momirov

Relevance of the cases

The present decision of the Dutch Supreme Court and the non-admissibility decision of the ECtHR, which in effect confirmed the reasoning of the Dutch Supreme Court, are part of the jurisprudential developments concerning the law on immunities of international organizations (the Supreme Court judgement, and the ECtHR decision, respectively). Increasingly, domestic and regional courts have started reinterpreting the law on immunities as a response to human rights-based critiques. Whether or not international organizations enjoy immunity before a domestic court should, according to this developing approach, depend on a balancing act between, on the one hand, the functional interests of the international organization and, on the other hand, the individuals’ right of access to court. The decisions discussed in this section illustrate this development as well as the limits of this developing line of jurisprudence by confirming that the immunity of the UN, as a sui generis international organization, shall not be subjected to the aforementioned balancing act.

I. The facts of the cases

In what is considered to be one of the darkest pages of the Yugoslav wars, the Bosnian town of Srebrenica—previously declared a demilitarized ‘safe area’ under the protection of the UN forces deployed in Bosnia and Herzegovina (UNPROFOR)—was ran over by the Bosnian Serb Army in July 1995. The ensuing expulsion of women and children from the enclave and the killing of more than 7000 men and boys have been qualified as genocide by the International Court of Justice (ICJ) and the International Criminal Tribunal for the Former Yugoslavia (ICTY).1 The failure of UNPROFOR and in particular Dutchbat—the Dutch component bearing primary responsibility in the Srebrenica region—to demilitarize the enclave and protect the civilians from the ‘safe area’ has been the subject of numerous political debates and legal proceedings in various states and at the international level.

In 2007, Mothers of Srebrenica, a Dutch foundation established in order to represent the relatives of the individuals killed during the Srebrenica massacres, initiated [1]

proceedings against the state of The Netherlands and against the UN before the District Court in The Hague. With respect to the UN, the foundation held that it was partly responsible for the fall of the enclave and for the consequences thereof, including the failure to prevent the mass killings. The foundation sought, on behalf of the surviving relatives, a judgment declaring that the UN (as well as The Netherlands) acted wrongfully. The foundation based its arguments, which will be touched upon in the following sections, both on Dutch civil law and on international law.

Amongst the various legal matters raised during the proceedings, this contribution addresses the question of immunity of the UN. Both the Dutch Supreme Court as well as the ECtHR had to decide whether the grant of immunity to the UN under the present circumstances was justified, that is whether upholding the UN’s immunity would amount to a violation of the right of access to court.

II. The legal questions

Both decisions deal with the extent of immunities enjoyed by international organizations before domestic courts. The two decisions acknowledge the ongoing doctrinal and jurisprudential calibration of the relationship between human rights (the right of access to courts in particular) and the immunity of international organizations. Two particular aspects of the cases characterize the significance of the decisions: firstly, the cases relate to activities of the UN, carried out under Chapter VII of the UN Charter and secondly, it is generally assumed that the allegations brought against the UN in the case before the Dutch Supreme Court relate to peremptory norms of international law.

Hence, the decisions address the following legal questions: does the grant of immunity to the UN infringe upon an individual’s right of access to court and should this right prevail in situations where claims are based on alleged violations of norms of jus cogens?

III. Excerpts

Mothers of Srebrenica v The Netherlands & the UN, LJN: BW1999, Dutch Supreme Court, 13 April 2012 [...]

3.1 The central question in this case is whether the appeal court was right to rule that the UN is entitled to immunity from jurisdiction, and consequently that the Dutch courts are not competent to hear the action brought by the Association et al. in so far as it is directed against the UN. [.]

Basis for and scope of the UN’s immunity

4.2 The basis for the UN’s immunity (to be distinguished from the immunity granted to its officials and to experts performing missions for the UN) is article 105 of the UN Charter and article II, § 2 of the Convention. The court of appeal was correct to interpret the latter provision—which is an elaboration of article 105, paragraph 1—in the light of article 31 of the Vienna Convention on the Law of Treaties, to mean that the UN enjoys the most far-reaching immunity from jurisdiction, in the sense that the UN cannot be summoned to appear before any domestic court in the countries that are party to the Convention.

Both the basis for and the scope of this immunity, which is aimed at ensuring that the UN can function completely independently and thus serves a legitimate purpose, are therefore different from those underlying the immunity from jurisdiction enjoyed by foreign states. As stated in section 13a of the General Legislative Provisions Act, the latter, after all, stems from international law (par in parem non habet imperium), and applies exclusively to acts of a foreign state performed in a governmental capacity (acta iure imperii).

UN immunity and access to the courts

  • 4.3.1 As stated in 4.1.1, the appeal court examined, on the basis of the criteria set out by the ECtHR in Beer and Regan v. Germany (ECtHR 18 February 1999, no. 28934/ 95) and Waite and Kennedy v. Germany (ECtHR 18 February 1999, no. 26083/94), whether the invocation of UN immunity is compatible with the right of access to the courts enshrined in article 6 ECHR and article 14 ICCPR. In the cassation proceedings the State is no longer contesting the argument that this right—which is not an absolute right—also constitutes a rule of customary international law.
  • 4.3.2 Both the cases cited above involved proceedings before the German courts against the European Space Agency (ESA) in which the claimants wanted the court to establish that they had become employees of ESA under German law. ESA, an international organisation, pled immunity from jurisdiction under article XV, §2 of the Convention for the establishment of a European Space Agency of 30 May 1975 in conjunction with Annex I to the same Convention (Dutch Treaty Series 123). The German court had accepted that plea. The ECtHR held that this did not constitute a violation of article 6 ECHR.
  • 4.3.4 The UN occupies a special place in the international legal community, as expressed by the ECtHR in its decision in the cases of Behrami and Behrami v. France and Saramati v. France, Germany, and Norway, ECtHR 2 May 2007, no. 71412/01 and 78166/01.[. ]
  • 4.3.5 The interim conclusion must be that the appeal court erred in examining, on the basis of the criteria formulated in Beer and Regan and Waite and Kennedy, whether the right of access to the courts as referred to in article 6 ECHR prevailed over the immunity invoked on behalf of the UN.
  • 4.3.6 That immunity is absolute. Moreover, respecting it is among the obligations on UN member states which, as the ECtHR took into consideration in Behrami, Behrami and Saramati, under article 103 of the UN Charter, prevail over conflicting obligations from another international treaty.
  • 4.3.7 However, this does not answer the question of whether, as argued by the Association et al. with reference to the dissenting opinions in the ECtHR’s judgment of 21 November 2001 in the case of Al-Adsani v. the United Kingdom no. 35763/97 concerning state immunity, the right of access to the courts should prevail in the present case over UN immunity because the claims are based on the accusation of involvement in—notably in the form of failing to prevent—genocide and other grave breaches of fundamental human rights (torture, murder and rape). On this matter, the Association et al. argue in 5.13 of their writ of summons in cassation: ‘There is no higher norm in international law than the prohibition of genocide. This norm in any event takes precedence over the other norms at issue in this legal dispute. The enforcement of this norm is one of the main reasons for the existence of international law and for the most important international organisation, the UN. This means that in cases of failure to prevent genocide, international organisations are not entitled to immunity, or in any event the prohibition should prevail over such immunity. The view that the UN’s immunity weighs more heavily in this instance would mean de facto that the UN has absolute power. For its power would not be subject to restrictions and this would also mean that the UN would not be accountable to anyone because it would not be subject to the rule of law: the principle that no-one is above the law and that power is curbed and regulated by the law. Immunity of so far-reaching a kind as envisaged by the appeal court is incompatible with the rule of law and furthermore undermines the credibility of the UN as the champion of human rights’. [...]
  • 4.3.10 Even more important than the fact that [the Al-Adsani v. the United Kingdom opinion] does not reflect even the current status of the view accepted by the ECtHR, is the ruling by the International Court of Justice (ICJ), cited by the State in its response to the Advocate-General’s advisory opinion, in its judgment of 3 February 2012 in the case Jurisdictional Immunities of the State (Germany vs. Italy: Greece intervening). At issue in this case was, inter alia, the question of whether the Italian courts should have respected Germany’s immunity in cases in which compensation was claimed from Germany for violations of international humanitarian law committed by German forces during the Second World War. The ICJ concluded that they should have. [...]
  • 4.3.14 Although UN immunity should be distinguished from State immunity, the difference is not such as to justify ruling on the relationship between the former and the right of access to the courts in a way that differs from the ICJ’s decision on the relationship between State immunity and the right of access to the courts. The UN is entitled to immunity regardless of the extreme seriousness of the accusations on which the Association et al. base their claims.

Concluding considerations

  • 4.4.1 The foregoing considerations lead to the conclusion that the complaints on grounds of law in grounds of appeal 3 to 7 in the appeal in cassation are untenable. Nor can the complaints in grounds of appeal 1, 2, 8 and 9—the sees no reason to request a preliminary ruling from the Court of Justice of the European Union on ground of appeal 8—result in cassation. Under section 81 of the Judiciary (Organisation) Act no further reasons for this decision need be given, since the complaints do not warrant the answering of questions of law in the interests of the uniform application or development of the law.
  • 4.4.2 According to the considerations set out in 4.3.1 to 4.3.13 above, the complaints in grounds of appeal 2 and 3 in the cross-appeal are largely well-founded, but this does not result in cassation. Nor do the remaining grounds of appeal result in cassation. Under section 81 of the Judiciary (Organisation) Act no further reasons for this decision need be given, since the complaints do not warrant the answering of questions of law in the interests of the uniform application or development of the law. [In this two-tiered case, the Dutch Supreme Court rendered its judgment in 2012 with respect to the UN.]

Stichting Mothers of Srebrenica and Others against The Netherlands, App. No. 65542/12, European Court of Human Rights, 11 June 2013 [...]

  • 118. The applicants alleged violations of Article 6 of the [Convention]. [...]
  • (b) The Court’s assessment [.]

140. The applicants’ argument rests on three pillars. The first is the nature of the immunity from domestic jurisdiction enjoyed by international organisations, which is, in their submission, functional; in this, they argue, it contrasts with the sovereign immunity enjoyed by foreign States, which is grounded on the sovereign equality of States among themselves. The second is the nature of their claim, which derives from the act of genocide committed at Srebrenica and is in their view of a higher order than any immunity which the United Nations may enjoy. The third is the absence of any alternative jurisdiction competent to entertain their claim against the United Nations. The Court will consider each of these in turn.

a. The nature of the immunity enjoyed by the United Nations [...]

  • 149. Previous cases before the Court in which the question of the immunity from domestic jurisdiction of international organisations has come up have, until now, concerned disputes between the organisation and members of its staff (see Waite and Kennedy and Beer and Regan, both cited above; see also Lopez Cifuentes v. Spain (dec.), no. 18754/06, 7 July 2009). [...]
  • 152. The present case is different from all those mentioned. At its root is a dispute between the applicants and the United Nations based on the use by the Security Council of its powers under Chapter VII of the United Nations Charter.
  • 153. Like resolutions of the Security Council, the United Nations Charter and other instruments governing the functioning of the United Nations will be interpreted by the Court as far as possible in harmony with States’ obligations under international human rights law.
  • 154. The Court finds that since operations established by United Nations Security Council resolutions under Chapter VII of the United Nations Charter are fundamental to the mission of the United Nations to secure international peace and security, the Convention cannot be interpreted in a manner which would subject the acts and omissions of the Security Council to domestic jurisdiction without the accord of the United Nations. To bring such operations within the scope of domestic jurisdiction would be to allow individual States, through their courts, to interfere with the fulfilment of the key mission of the United Nations in this field, including with the effective conduct of its operations (see, mutatis mutandis, Behrami and Behrami v. France and Saramati v. France, Germany and Norway, cited above, § 149).

[ft. The nature of the applicants’ claim]

  • 158. However, unlike Jorgic, the present case does not concern criminal liability but immunity from domestic civil jurisdiction. International law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens. In respect of the sovereign immunity of foreign States this has been clearly stated by the ICJ in Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), judgment of 3 February 2012, §§ 81-97. In the Court’s opinion this also holds true as regards the immunity enjoyed by the United Nations.
  • 159. Notwithstanding the possibility of weighing the immunity of an official of the United Nations in the balance, suggested in paragraph 61 of the ICJ’s Advisory Opinion concerning the Difference Relating to Immunity from Legal Process of a Special Rapporteur of the Commission on Human Rights, the Court sees no reason to reach a different finding as regards the immunity enjoyed by the United Nations in the present case, especially since—unlike the acts impugned in the Jurisdictional Immunities case—the matters imputed to the United Nations in the present case, however they may have to be judged, ultimately derived from resolutions of the Security Council acting under Chapter VII of the United Nations Charter and therefore had a basis in international law.

[y. The absence of any alternative jurisdiction] [...]

  • 163. As the applicants rightly pointed out, in Waite and Kennedy (cited above, § 68)—as in Beer and Regan (cited above, § 58)—the Court considered it a ‘material factor’, in determining whether granting an international organisation immunity from domestic jurisdiction was permissible under the Convention, whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention. In the present case it is beyond doubt that no such alternative means existed either under Netherlands domestic law or under the law of the United Nations.
  • 164. It does not follow, however, that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court. In respect of the sovereign immunity of foreign States, the ICJ has explicitly denied the existence of such a rule (Jurisdictional Immunities of the State (Germany v. Italy: Greece intervening), § 101). As regards international organisations, this Court’s judgments in Waite and Kennedy and Beer and Regan cannot be interpreted in such absolute terms either. [...]
  • 169. The above findings lead the Court to find that in the present case the grant of immunity to the United Nations served a legitimate purpose and was not disproportionate.
  • 170. It follows that this part of the application is manifestly ill-founded and must be rejected in accordance with Article 35 §§ 3 (a) and 4 of the Convention.

IV. Commentary

The Supreme Court judgment and the non-admissibility ECtHR decision concern the tragic events which occurred in and around Srebrenica in 1995. Numerous legal proceedings, both domestic as well as international, have ever since engaged in establishing the facts. Also in terms of law, courts and tribunals have been assessing legally relevant relationships pertaining to the events in Srebrenica in various fields of international law, including international criminal law and the law on state responsibility. The decisions discussed in this section focus on a different body of law and address the scope of immunities enjoyed by international organizations before domestic courts.[2] As previously stated, the decisions shed light on two questions in particular: does the grant of immunity to the UN infringe upon an individual’s right of access to court and should this right prevail in situations where claims are based on alleged violations of norms of jus cogens? As both decisions deal with the same questions, and considering the fact that the ECtHR decision in essence confirmed the Supreme Court’s judgment, this commentary will primarily focus on the Supreme Court judgment, referring to the ECtHR decision where required.[3]

With respect to the first question, international law generally accepts that international organizations enjoy immunity from legal proceedings based on the theory of functional necessity. This functional immunity differs from state immunity, which has been construed as an absolute immunity enjoyed by one sovereign vis-a-vis another—par in parem non habet imperium.

As opposed to state immunity, functional immunity is not based on any conception of sovereignty but on the necessity of international organizations to be able to exercise their duties and fulfil their purpose in a way unhindered by, possibly malevolent, domestic jurisdictions. Worded differently, functional immunity is an indispensable shield against ‘unilateral interference by individual governments’.[4] The legal foundation of immunities enjoyed by international organizations is generally founded on a combination of constitutive documents of international organizations, various bilateral and multilateral treaties, as well as domestic legis- lation.[5] Turning to the UN, immunity is governed by the Convention on Privileges and Immunities of the United Nations (General Convention), which in effect implements the immunity provided to the UN by art. 105 of the UN Charter. The preamble of this convention states that the UN is granted ‘such privileges and immunities as are necessary for the fulfillment of its purposes’. As argued by the applicants in the ECtHR proceedings, this would imply that ‘whenever the United Nations invoked its immunity, the courts had to determine whether a functional need for such immunity existed’ (ECtHR decision, para. 122). However, art. II, Section 2 of the General Convention grants the UN ‘immunity from every form of legal process’, a provision interpreted widely so as to confer absolute immunity on the UN and its subsidiary bodies.[6]

Such an all-encompassing conception of immunity has given rise to human rights concerns. Simply put, in carrying out their activities, international organizations increasingly affect individuals directly. At times, individuals’ human rights might even be violated. Indeed, the invocation and subsequent grant of immunity might bar individuals from having their claims examined by a court. Consequently, it has been argued that when applied in a near-absolute manner, granting immunity leads to a breach of the right to an effective remedy that is the right of access to court.[7]

The two present decisions add to a broader jurisprudential development through which courts, both at the domestic as well as at the international level, have started to question the scope of immunity enjoyed by international organizations—or rather the unconditionality thereof. In so doing, courts engage in a balancing act in which they consider whether upholding the jurisdictional immunity of an international organization is proportionate in relation to the right of access to court and a possible denial thereof. Indeed, the ECtHR, for example, has recognized that the rights at stake are not absolute, but that restrictions on the basis of immunity need to pursue a legitimate aim and have to be proportionate.[8]

In assessing this proportionality, the existence of alternative mechanisms through which recourse and redress would be provided to the adversely affected individuals has proven to be a decisive factor. More specifically, according to this approach, a court would be willing to assume jurisdiction over an international organization if this organization does not provide for a mechanism through which a level of human rights protection can be upheld which is similar to that of the court’s own legal system.[9] A pioneer when it comes to developing this approach, the German Bundesverfassungsgericht held in the third decision amongst its famed Solange judgments, in relation to the European Community, that:

Acts done under a special power, separate from national powers of Member States, exercised by a supra-national organization also affect the holders of basic rights in Germany. They therefore affect the guarantees of the Constitution and the duties of the Constitutional Court, the object of which is the protection of constitutional rights in Germany—in this respect not merely as against German state bodies.[10] [11]

The ECtHR upheld this so-called ‘equivalent protection’ approach and, in Waite and Kennedy, added that:

a material factor in determining whether granting [the European Space Agency] immunity from German jurisdiction is permissible under the [ECHR] is whether the applicants had available to them reasonable alternative means to protect effectively their rights under the Convention.11

Adding to this developing line of jurisprudence, the two present decisions are characterized by two particular features: firstly, the underlying facts relate to activities of the UN, carried out under Chapter VII of the UN Charter and secondly, the allegations brought against the UN in the case before the Dutch Supreme Court relate to peremptory norms of international law, albeit that this last feature is disputed as will be discussed below.

The first point of interest is, thus, whether the described balancing act should also be applied to UN immunity. At the outset of the first instance proceedings, the UN clearly invoked its immunity, rather than making use of the possibility to waive it.12 Hence, before reaching the cassation phase, in 2008 the District Court in The Hague had rejected the claims against the UN on the basis that it lacked jurisdiction/3 The Court of Appeal then upheld the judgment of the District Court/4 Civil Law Section, Judgment in the incidental proceedings, 10 July 2008 (District Court judgment). The Dutch Supreme Court had to assess whether the lower instance courts were right in granting the UN immunity and rendered its judgment in 2012 confirming the grant of immunity of the UN, albeit for reasons surprisingly different from the ones relied on by the Court of Appeal.

Although the Court of Appeal had granted the UN immunity, it had done so only after weighing the ramifications of such a decision in terms of human rights-related implications. In the words of the court, ‘the Court of Appeal believes that article 103 of the Charter does not preclude testing the immunity from prosecution against article 6 ECHR and article 14 ICCPR’/5 The Court went on to apply these standards. With respect to whether there were alternative mechanisms available to the Mothers of Srebrenica, the Court of Appeal held that the plaintiffs had various alternatives at their disposal. The court specified that these were alternatives through which the actual perpetrators could be held criminally responsible/6 This reasoning of the court is rather unconvincing, as it emphasizes the existence of other legal mechanisms through which other involved actors could be held to account, rather than mechanisms which could assess the responsibility of the UN. In fact, the court disregarded the fact that the General Convention links the privileges and immunities of the UN with an obligation for the UN itself to establish alternative mechanisms, which would address the possible wrongdoings of the UN, rather than any other actors. As this

September 2008 (Kadi I). For a critical view of the piercing of absolute immunity, see for example G. De Burca, ‘The European Court of Justice and the International Legal Order after Kadi’, (2010) 51(1) Harvard International Law Journal 1-50.

  • 12 In a letter dated 17 August 2007, the UN had informed the Dutch Permanent Representative to the UN that it would not waive its immunity in this particular case (cf. Supreme Court judgment, para. 3.2.2).
  • 13 District Court in The Hague, Association Mothers of Srebrenica et al. v The Netherlands and the United Nations, (2995247/HA ZA 07-2973, LJN: BD6796), Civil Law Section, Judgment in the incidental proceedings, 10 July 2008.
  • 14 cf. ibid.
  • 15 cf. ibid., at paras 5.2-5.5 (emphasis added). See also references in the Supreme Court judgment, para. 4.3.1.
  • 16 cf. District Court judgment, at paras 5.11-5.13 (emphasis added). See also Supreme Court judgment, para. 4.1.1.

issue was also brought up by the applicants in the subsequent ECtHR proceedings, the Strasbourg court briefly touched upon the question of alternative mechanisms. However, it did not engage in an assessment of possible alternative mechanisms, or a lack thereof. Rather, it concluded that it ‘does not follow, however, that in the absence of an alternative remedy the recognition of immunity is ipso facto constitutive of a violation of the right of access to a court’.[12]

In terms of whether granting immunity would serve a legitimate aim, the Court of Appeal found that in this particular context, immunity ‘is closely connected to the public interest pertaining to keeping peace and safety in the world [and] that only compelling reasons should be allowed to lead to the conclusion that the United Nations’ immunity is not in proportion to the objective aimed for’, quod non according to the Court.i[13] In sum, by applying the Waite and Kennedy criteria, the Court of Appeal had expanded the reach of these criteria to the UN—erroneously so, as the Dutch Supreme Court held in its judgment.

The Dutch Supreme Court quashed the reasoning of the Court of Appeal. In several to-the-point paragraphs, the Supreme Court points to the fact that the ‘UN occupies a special place in the international legal community’/[14] While confirming the immunity of the UN, the court rejects boldly that the Waite and Kennedy criteria—or as it seems any other criteria, for that matter—should be applied in cases concerning the UN. As the court states, ‘[t]he interim conclusion must be that the appeal court erred in examining, on the basis of the criteria formulated in Beer and Regan and Waite and Kennedy, whether the right of access to the courts as referred to in article 6 ECHR prevailed over the immunity invoked on behalf of the UN’, concluding unequivocally ‘[t]hat immunity is absolute’.[15] [16] In the proceedings before the ECtHR, the Strasbourg court upheld this view by holding that the present case was fundamentally different from previous cases pertaining to the immunity of international organizations, emphasizing the importance of the UN, especially when acting under Chapter VII of the UN Charter.21

As to the second characteristic feature of the proceedings, the Supreme Court also dismissed the gravity of the underlying claims as a possible limitation to immunity. The Court first generously cites the Mothers of Srebrenica’s writ of summons in cassation:

There is no higher norm in international law than the prohibition of genocide. This norm in any event takes precedence over the other norms at issue in this legal dispute. The enforcement of this norm is one of the main reasons for the existence of international law and for the most important international organisation, the UN. This means that in cases of failure to prevent genocide, international organisations are not entitled to immunity, or in any event the prohibition should prevail over such immunity. The view that the UN’s immunity weighs more heavily in this instance

would mean defacto that the UN has absolute power. [...][17]

The Supreme Court went on to reject this argumentation and reinforced the parallel between state immunity and the immunity of international organizations by basing its argument on several key decisions in which the vast scope of state immunity had previously been upheld despite allegations of violations of jus cogens norms. In so doing, the court relied heavily on the ECtHR Al-Adsani decision, where state immunity was upheld despite allegations of violations of the prohibition of tortured[18] [19] Similar emphasis was placed on the 2012 Jurisdictional Immunities of the State judgment of the International Court of JusticeTh

In the subsequent proceedings before the ECtHR, the nature of the underlying proceedings was also dismissed as a factor which could inform a decision on whether or not to grant immunity. Furthermore, the Strasbourg court, just like the Dutch Supreme Court, left aside the question of whether the obligation to prevent genocide had jus cogens status to begin with. Rather, the ECtHR essentially dismissed the gravity-argument by emphasizing the fact that the proceedings before the Dutch courts concerned civil claims: ‘[international law does not support the position that a civil claim should override immunity from suit for the sole reason that it is based on an allegation of a particularly grave violation of a norm of international law, even a norm of ius cogens’.[20] [21]

In sum, the two decisions should be placed in the context of two developments within the body of law that regulates immunities of international organizations. Firstly, both decisions fortify the link between the traditionally functional immunity of international organizations and state immunity. In their decisions, both courts rely heavily on several judgments of the ECtHR and the International Court of Justice which, in previous years, have restated the rigid nature of state immunity; a development most recently reconfirmed by the ECtHR’s much discussed Jones decision^6 This linkage gives impetus to the jurisprudential development according to which the grant of immunity, at least when it comes to states and the UN, does not depend on the nature of the underlying allegations in a particular case. Secondly, by granting the UN seemingly absolute immunity, the Dutch Supreme Court remains loyal to a fault to a rigid conception of immunity. Leaving aside possible further developments of the equal protection-line of argumentation and the Waite and Kennedy criteria with respect to other actors, these two decisions put a hold on such possible developments with respect to the immunity of the UN, as a sui generis international organization, for activities carried out under Chapter VII.

  • [1] cf. ICJ, Case Concerning the Application of the Convention on the Prevention and Punishment of theCrime of Genocide (Bosnia and Herzegovina v Serbia and Montenegro), Judgment, 26 February 2007 and,amongst others, ICTY, Prosecutor v Krstic, (IT-98-33), Appeals Chamber, Judgment, 19 April 2004.
  • [2] Both decisions are intrinsically linked—and share the same factual backdrop—with two otherjudgments which are discussed in this volume, namely Nuhanovic v Netherlands, Appeal Judgment,LJN: R5388, ILDC 1742 (NL 2011) and Mustafic v Netherlands, Appeal Judgment, LJN: BR 5386, bothrendered by the Dutch Court of Appeals on 5 July 2011.
  • [3] As the Strasbourg court stated, it had ‘only to decide whether The Netherlands violated the applicants’ right of “access to a court”, as guaranteed by Article 6 of the Convention, by granting the UnitedNations immunity from domestic jurisdiction’, ECtHR decision, para. 137.
  • [4] cf. Waite and Kennedy v Germany, App. No. 26083/94, 18 February 1999, para. 63 (Waite andKennedy).
  • [5] cf. United States International Organizations Immunities Act, 29 December 1945, 22 U.S.C., Section288, however, the customary status of functional immunity of international organizations has beendisputed.
  • [6] cf. A. Reinisch & U.A. Weber, ‘In the Shadow of Waite and Kennedy. The Jurisdictional Immunityof International Organizations, the Individual’s Right of Access to the Courts and AdministrativeTribunals as Alternative Means of Dispute Settlement’, (2004) 1 International Organizations Law Reviewat 60, fn. 5, quoting the UN Office of Legal Affairs.
  • [7] This right is for example guaranteed by art. 2(3) of the International Covenant on Civil and PoliticalRights. This right should be understood broadly and as related to such adjacent rights dealing with accessto court and fair trial. See for example the American Convention on Human Rights (art. 8) and theECHR (art. 6). The right to access to court is implied in these documents and has been recognized by theECtHR as implicit to art. 6 ECHR, as restated in Waite and Kennedy, para. 50.
  • [8] cf. Al-Adsani v the United Kingdom, App. No. 35763/97, 21 November 2001, paras 52-67 (Al-Adsani).See also for example F. Francesco (ed.), Access to Justice as a Human Right (Oxford University Press 2007).
  • [9] Reinisch and Weber conclude, however, that even when such alternative mechanisms do exist, theygenerally fall short of respecting most of the accepted fair trial standards, see Reinisch and Weber (n. 6),pp. 109-10.
  • [10] cf. Germany, Federal Constitutional Court, BverfGE 89, 155 12 October 1993 (Solange III), in 1Common Market Law Review 57 at 253. Various courts from other jurisdictions have at times adoptedthis approach, see for example Switzerland, Federal Supreme Court, Consortium X v Switzerland, BGE130 I 312, 2 July 2004, ILDC 344 and France, Court of Cassation, La Banque Africaine de Developpementv Mr X, 04-41012, 25 January 2005, ILDC 778.
  • [11] cf. Waite and Kennedy, para. 68. The reasoning was further embraced in key decisions: BosphorusHava Yollari Turizm ve Ticaret Anonim Sirketi v Ireland, App. No. 45036/98, 30 June 2005 (Bosphorus)and European Court of Justice (ECJ), Joined Cases C-402 and 415/05P, Kadi & Al Barakaat InternationalFound. v Council of the European Union & Commission of the European Communities, ECR I-6351, 3
  • [12] cf. ECtHR decision, para. 164. i8 cf. Court of Appeal judgment, para. 5.7.
  • [13] 19 cf. Supreme Court judgment, para. 4.3.4.
  • [14] 20 cf. ibid., paras 4.3.5-4.3.6. The applicants in the ECtHR proceedings argued that this distinction
  • [15] between the UN and other international organizations was flawed (cf. ECtHR decision, paras 130-2).
  • [16] cf. ECtHR decision, paras 149-54.
  • [17] cf. Supreme Court judgment, para. 4.3.7.
  • [18] cf. ibid., paras 4.3.8-4.3.9.
  • [19] 24 cf. ICJ, Jurisdictional Immunities of the State (Germany v Italy; Greece intervening), Judgment, 3February 2012, para. 93; see Supreme Court judgment, paras 4.3.10-4.3.14.
  • [20] cf. ECtHR decision, para. 158.
  • [21] cf. Jones and others v the United Kingdom, App. No. 34356/06 and 40528/06, 14 January 2014.
 
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