Mothers of Srebrenica v Netherlands

• Jurisdiction: Holanda
• Judge: Fleers,van Buchem-Spapens,Bakels,Streefkerk and Asser,Justices
• Judgment Date: 13 April 2012
• Date: 13 April 2012
• Court: Supreme Court (Netherlands)

The Netherlands, Supreme Court.

(Fleers, Presiding Justice; van Buchem-Spapens, Bakels, Streefkerk and Asser, Justices)

Mothers of Srebrenica Association and Others

and

Netherlands and United Nations1

International organizations United Nations Immunity Nature of immunity Whether absolute Basis and scope of immunity Whether United Nations entitled to immunity from jurisdiction Whether Dutch courts competent to hear appellants' action in so far as directed against United Nations Conflicting obligations under international agreements Prevailing obligation Whether right of access to a court overriding immunity of United Nations Relevance of seriousness of allegations Whether entitlement to immunity dependent on existence of alternative means of securing redress United Nations Charter, 1945, Articles 103 and 105

Treaties Interpretation United Nations Charter, 1945, Articles 103 and 105 Convention on the Privileges and Immunities of the United Nations, 1946, Article II(2) Vienna Convention on the Law of Treaties, 1969, Article 31European Convention on Human Rights, 1950, Article 6 Conflicting obligations under international agreements Prevailing obligation Whether right of access to a court overriding immunity of United Nations European Convention on Human Rights, 1950, Article 6 International Covenant on Civil and Political Rights, 1966, Article 14 Relationship with Article 103 of United Nations Charter, 1945 and Article II(2) of Convention on the Privileges and Immunities of the United Nations, 1946

Human rights Right of access to a court European Convention on Human Rights, 1950, Article 6 International Covenant on Civil and Political Rights, 1966, Article 14 Whether invocation of United Nations immunity compatible with right of access to courts Activities of UN under Chapter VII of UN Charter Relevance of seriousness of allegations Relationship of United Nations immunity and State immunity with right of access to courts The law of the Netherlands

Summary:2The facts:For the factual background to this case, see p. 2 above. The appellants, the Mothers of Srebrenica Association, a foundation under Netherlands law created to promote the interests of surviving relatives of persons killed in the July 1995 Srebrenica massacre, and individual surviving relatives, brought proceedings against the defendants, the Kingdom of the Netherlands and the United Nations. They claimed that the Netherlands and the United Nations bore responsibility for the maltreatment, rape, murder and genocide that had taken place during the Srebrenica massacre. They maintained that the Dutch contingent of the United Nations Protection Force in Bosnia and Herzegovina (UNPROFOR), which had been stationed at Srebrenica at the time of the massacre, had failed to protect the population after the town fell to Serb forces.

On 30 March 2010, the Court of Appeal of The Hague3 upheld the judgment of the District Court which, on 10 July 2008, had declared that it was not competent to hear the action in so far as it was directed against the United Nations, since the United Nations was immune from jurisdiction and had not waived its immunity. The appellants appealed.

Held:The appeal was dismissed.

(1)(a) The United Nations enjoyed absolute immunity under Article 105 of the United Nations Charter, 1945 and Article II(2) of the Convention on the Privileges and Immunities of the United Nations, 1946. This immunity, which was intended to ensure the independent functioning of the United Nations and thus served a legitimate purpose, was different from the immunity enjoyed by foreign States. As stated in Section 13a of the General Legislative Provisions Act,4 the latter, after all, stemmed from international law and applied exclusively to acts of a foreign State performed in a governmental capacity (para. 4.2)

(b) The immunity of the United Nations was not overridden by the right of access to a court under Article 6 of the European Convention on Human Rights. In accordance with Article 103 of the United Nations Charter, obligations arising under the Charter prevailed over obligations under any other international agreement. Operations established by United Nations Security Council Resolutions under Chapter VII of the Charter were fundamental to the mission of the United Nations to secure international peace and security. Article 6 of the European Convention could not be interpreted so as to subject the acts and omissions of Contracting Parties covered by those resolutions, and occurring prior to or in the course of such missions, to the scrutiny of the Court. The United Nations was entitled to that immunity irrespective of the seriousness of the allegations involved (paras. 4.3.14.3.7).

(2) A preliminary ruling from the Court of Justice of the European Union was not necessary. Under Section 81 of the Judiciary (Organization) Act, no further reasons were required since the complaints did not warrant answering questions of law in the interests of its uniform application or development (paras. 4.4.14.4.2).

The following is the text of the judgment of the Court:

1. PROCEEDINGS BEFORE THE COURTS HEARING THE FACTS

For the course of the proceedings before the courts hearing the facts the Supreme Court refers to:

• a. the judgment of The Hague district court of 10 July 2008 in case No 295247/HA ZA 072973;

• b. the judgment of The Hague court of appeal of 30 March 2010 in case No 200.022.151/01.

The appeal court judgment is appended to this judgment [not reproduced in the ILR].

2. CASSATION PROCEEDINGS

The Association et al. lodged an appeal in cassation against the judgment of the court of appeal. The State lodged a cross-appeal in cassation. The writ of summons in cassation and the statement of defence containing the cross-appeal in cassation are appended to this judgment [not reproduced in the ILR] and form part of it.

Leave was granted to proceed against the UN in default of appearance.

The Association et al. and the State moved that the respective appeals against them be dismissed.

Counsel presented the case on behalf of the parties. The State withdrew part 1 of its statement of grounds for the cross-appeal, which objected to the appeal court's ruling that the right of access to the courts is a rule of customary international law which may be invoked separately from Article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and Article 14 of the International Covenant on Civil and Political Rights (ICCPR). The advisory opinion issued by Advocate General Paul Vlas recommended that both appeals be dismissed.

Counsel for the State and counsel for the Association et al. responded to this submission by letter of 10 February 2012.

3. BASIS FOR THE CASSATION PROCEEDINGS

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. The following applies in this case.

3.2.1 The Association et al. sued the State and the UN before The Hague district court. They held the State (and Dutchbat, the Dutch unit under UN command) and the UN partly responsible for the fall in 1995 of the Srebrenica enclave in Eastern Bosnia, where Dutchbat was based and which had been designated a Safe Area under the protection of the UN peacekeeping force UNPROFOR by Security Council resolutions, and for the consequences of its fall, in particular the genocide committed subsequently which cost the lives of at least 8,000 people, including relatives of appellants 211 in the cassation proceedings. They sought, in brief, a declaratory judgment to the effect that the State and the UN acted wrongfully in failing to fulfil undertakings they had given before the fall of the enclave and other obligations, including treaty obligations, to which they were subject, in addition to (advances on) payments in compensation, to be determined by the court in follow-up proceedings.

3.2.2 The State forwarded to the district court a copy of a letter of 17 August 2007 from the UN to the Dutch Permanent Representative to the UN, in which the UN drew attention to its immunity from jurisdiction and stated that it would not waive this immunity. The Public Prosecution Service moved accordingly, and the district court granted leave to proceed against the UN in default of appearance and subsequently declared itself not competent to hear the action in so far as it was...