Friday, July 11, 2008

Dutch Court Rules That UN Has Immunity In Srebrenica Case

Yesterday, a Dutch district court ruled that the United Nations has immunity from a suit that sought to hold the international organization liable for failing to prevent the massacre at Srebrenica. The decision (in English) is here. Background on the case (from the plaintiffs' attorneys) is here; IWPR story here; AFP story here; Reuters story here; comment by the Invisible College Blog here. The plaintiffs will appeal. Here's a summary of the decision provided by the court:

In the civil case brought by the Association ‘Mothers of Srebrenica’ and ten individual plaintiffs (the Association et al.) versus the State of the Netherlands and the United Nations (UN) the District Court in The Hague has declared it has no jurisdiction to hear the action brought by the plaintiffs against the UN.

The court passed this judgment today in the ancillary claim instituted by the State of the Netherlands to determine whether the court has jurisdiction. At issue in these incidental proceedings were not yet the actions by the plaintiffs in the principal case, but strictly the question whether a Dutch court is competent to hear this civil action insofar as it pertains to the United Nations.

Central to the issue of whether a Dutch court has jurisdiction in this case is the question whether this case offers grounds or reasons to make an exception to the immunity enjoyed by the UN under international law. This immunity is laid down in Article 105, subsection 1 of the UN Charter and detailed in article II, paragraph 2 of the Convention on the Privileges and Immunities of the United Nations (the Convention).If the UN enjoys immunity, it cannot be summoned to appear before a court of law, in this instance a Dutch court. The Dutch court then lacks jurisdiction and is incompetent.

In the incident as to competence the State argued that the UN enjoys immunity; the Association et al. challenged this, claiming that the action of the UN in Bosnia-Herzegovina falls outside the scope of the immunity. The UN’s immunity has boundaries which have been overstepped in this case.

In deciding the matter of whether or not the UN enjoys immunity in this case the court first considered how the immunity, enshrined in article 105, subsection 1 of the UN Charter and developed in article II, paragraph 2 of the Convention on the Privileges and Immunities of the United Nations is interpreted and applied to prevailing law in international practice. The court concludes that in international-law practice absolute immunity of the UN is the standard and is respected, and that the interpretation of article 105 of the UN Charter offers no basis for restriction of the immunity of the UN.

Subsequently, the court considered whether the absolute immunity of the UN under international law is in conflict with other standards of international law, such as the standards of the International Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Genocide Convention. This did not lead to an exception to this immunity.

The ancillary claim brought by the State that the court is incompetent in the case of the Association et al. versus the UN should therefore be allowed. The court declares it is incompetent to hear the action instituted against the UN.