Wednesday, April 18, 2012

Srebrenica vs. UN (3)

In an interesting post on NJBlog, The Hague (and therefore: Supreme Court) attorney Guido Den Dekker criticises the Supreme Court's judgement on a few points. (See here, in Dutch.) He preferred the Court of Appeal's approach to Waite and Kennedy v Germany; Beer and Regan v Germany (see my first post on this case). He agrees with the Court on the ius cogens issue, though, arguing that the substantive question of the seriousness of the alleged crime should be separated from the process question of immunity. I would respectfully argue that this might be true in a perfect world, but is hardly always true in actual legal practice. Moreover, I would submit that process and substance can be separated quite easily, and exactly in the way that I suggested in my earlier post. Let me bullet-point it out step by step, for everyone's convenience:
  • If the plaintiff's complaint alleges - in so many words - a violation of ius cogens, the immunity of the international organisation is off the table. The allegation alone is enough.
  • Once immunity is off the table, the defendant will have to make an appearance. If they do, they can fight the chase in the usual way, if they do not, a default judgement will be entered, at least insofar as the ius cogens claims are concerned.
  • Under Dutch law, a default judgement requires some sua sponte examination of the case by the court. Under art. 139 of the Code of Civil Procedure, a default judgement cannot be entered if the claim "appears" to the court to be "unlawful or unfounded". In cases against international organisations, the flip-side of point 1 above is that this test should have real substance: In the Srebrenica case, the plaintiffs talked about ius cogens a lot, but - taking all of the plaintiff's factual allegations as true - they did not legally amount to an actual claim of a violation of ius cogens. This should lead either to the UN's immunity being upheld, or to the request for a default judgement being denied.
This seems like a reasonably tidy way of setting it up, and it does a reasonable job of keeping substance and immunity separate without going so far as to giving the UN a pass for actual cases of genocide or - more likely -  torture. 

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