Chapter VIII. Decisions of national tribunals

1. The Netherlands

   1. Judgment of the Court of Appeal of The Hague, LJN: BA 2778 (15 March 2007)* 1

      (Extracts)

      Privileges and immunities of international organizations—Organization for the Prohibition of Chemical Weapons (OPCW)—Immunity of jurisdiction and from execution granted to OPCW—Headquarter Agreement—Respect of property of OPCW intended to ensure the performance of its official activities—Legal consequences of notification given in breach of the State’s obligations under international law—Prevalence of State’s interests to perform its obligations under international law over an individual’s interests to execute a judgment in his favour

      The Facts: X entered the employment of the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague as a security guard under a fixed-term contract on 1 March 2001 From 28 May 2005 onwards, however, he no longer performed any work for OPCW He then served a writ of summons on OPCW before the subdistrict court in The Hague demanding continued payment of his salary By letter of 31 October 2005 OPCW wrote as follows to the subdistrict court judge: ‘( ) OPCW would like to inform the Court that according to the Headquarters Agreement Article 4, the OPCW enjoys immunity from any form of legal process in the Netherlands The OPCW would highly appreciate it if the necessary steps are taken to dismiss this case’ In his default judgment the subdistrict court judge responded as follows: ‘The court agrees with what the plaintiff has said about the OPCW’s immunity status and its claim to immunity Taking into account, among other things, the case law cited by the plaintiff, the OPCW has not made clear—or not made sufficiently clear—why it claims immunity in this dispute, which specifically concerns Dutch employment law and in which no diplomatic or similar interests are involved ’ The subdistrict court judge then directed the OPCW by default judgment of

      7 November 2005, among other things, to continue paying the salary The judgment was served by a bailiff on the OPCW on 5 December 2005 On 5 January 2006 the Minister of Justice notified the bailiff that the service of the writ and judgment was in conflict with the obligations of the State of the Netherlands under international law and that the performance of such official acts (in so far as not yet performed) should be refused X then applied to the District Court of The Hague for an interim injunction against the State of the Netherlands ordering it to negate the consequences of the notification of 5 January

      * 1 Source: Netherlands Yearbook of International Law (2008) case law survey No 3 2113

      2006 by the Minister of Justice He argued that the notification had been wrongly given He claimed that the OPCW was not entitled to immunity in so far as these acts were juristic acts under private law As the subdistrict court judge had held that the OPCW was not entitled to immunity from jurisdiction, it was also not entitled to immunity from execution of the judgment According to the interim relief judge, there was no need to answer the question of whether service of the writ of summons was in conflict with international law obligations Only the question of whether service of the judgment was in conflict with these obligations was relevant According to the interim relief judge, this was the case and he therefore dismissed X’s application (judgment of 23 August 2006) 1 2 X appealed against this judgment to the Court of Appeal of The Hague

      Held: “ 3 X’s ground of appeal is that the interim relief judge either wrongly held that the OPCW has immunity from execution of the judgment of the subdistrict court or failed to provide arguments for this X submits that the interim relief judge wrongly supposed that he (X) was appointed to perform the official activities of the OPCW and that the interim relief judge assumed in the light of the case law of the Supreme Court—albeit wrongly—that the OPCW has immunity from execution

      4 The Court of Appeal notes at the outset that immunity under international law from execution in respect of property (things and patrimonial rights) is intended to ensure that it remains available for the purpose for which it is held, namely the performance of official activities by the State or international organisation concerned This immunity from execution is, in principle, separate from any immunity from jurisdiction Under Article 4 (2) of the Headquarters Agreement the OPCW has such immunity from execution in respect of all property and possessions of the OPCW

      5 Article 3a, paragraph 2, of the Bailiffs Act gives the Minister the power to notify a bailiff that an official act which he has been or will be instructed to perform or which he has already performed is in conflict with the obligations of the State under public international law The State has submitted that one of the legal consequences of such a notification is that official acts already performed are void The Court of Appeal does not agree with this submission for the time being The legal consequences of the notification are regulated in paragraphs 5 and 6 of this article Paragraph 6 concerns official acts already performed at the time of the notification It is exclusively provided in this connection that if the official act involves service of a writ of seizure, the bailiff should immediately serve the notification, end the seizure and negate the consequences thereof This in itself means, in the provisional opinion of the Court of Appeal, that the official act is not void Paragraph 5 concerns official acts that have not yet been performed It provides that in such circumstances the bailiff is no longer competent to perform the act and that an official act performed in breach of this prohibition is void

      6 As there had still been no seizure at the moment of notification, the Court of Appeal is merely required as interim relief judge to determine whether the prohibition on further execution measures as a consequence of the notification should be lifted For the time being the Court of Appeal is of the opinion that the further execution of the

      1 2 LJN No BB1261, NIPR (2007) No 300 The interim relief judge held, finally, that although the Minister had exercised his power under Article 3a at the request of the OPCW this did not mean that this power had been abused After all, the Minister had himself assessed the case and come to the conclusion that the notification should be given

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      judgment of the subdistrict court would be in conflict with the obligation under international law entered into by the State in the headquarters agreement, which extends to all property and possessions of the OPCW Unlike X, the Court of Appeal is of the opinion that the notification is not premature because it is not clear how X wishes to proceed with the execution Under Article 4 (2) of the Headquarters Agreement the State is, after all, obliged to guarantee that the OPCW can make use of its property and possessions without being constrained by any measure of execution In the provisional opinion of the Court of Appeal, the interests of the State in being able to perform this obligation under international law are so great as to take precedence over X’s interest in being able to execute the judgment given in his favour

      7 In view of the above, the ground of appeal fails and the appealed judgment should be upheld X will therefore be ordered to bear the costs of the State in the appeal proceedings ’

   2. Judgment of the Court of Appeal of The Hague, LJN: BC 1757

      (17 December 2007)* 3

      Prosecution of crime of genocide—Referral by the International Criminal Tribunal for Rwanda (ICTR) to the authorities of the Netherlands—Differentiation between referral of prosecution and referral of execution—Question of original and secondary jurisdiction of national courts—Charter of the United Nations— State’s obligations under resolutions of the Security Council—Statute and Rules of Procedure of ICTR—Form of international convention—Interpretation of international treaty—National implementation of international treaty—Retroactivity

      Hearings

      1 This judgement is rendered as a result of the hearings in the Court of first instance and the hearing on appeal in this Court of Appeal on 3 December 2007

      The Court of Appeal has taken cognizance of the demand of the Advocate-General and of that which has been brought forward by and on behalf of the suspect

      The Advocate-General has moved that the judgement be set aside insofar as it concerns barring the public prosecutor from prosecution of the suspect on count 1 in the summons with case number 09/750007–07

      Charges

      2 The charges against the suspect are contained in the initiatory writs of summons and a further description of one of them is laid down in Section 314a of the Code of Criminal Procedure A copy is attached to this judgement ** 4 This Court of Appeal derives the following summary description of the charges which the public prosecutor’s office brought against the suspect from the judgement of the Court of first instance

      * 3 Translation provided by the Government of the Netherlands and edited by the Secretariat of the United Nations

      ** Not published herein

      1 The suspect is on trial for involvement in a number of serious offences allegedly committed in Rwanda in April 1994 The charges against the suspect are contained in two writs of summons which will be handled in a joint action

      2 The suspect was summoned for the first time on 21 November 2006 for a pro forma session for case number 09/750009–06 This case was again handled pro forma on 12 February 2007 and 5 March 2007, and also in the session of 11 May 2007, which was continued on 16 and 21 May 2007 This summons contains the following complex of facts:

      I Ambulance murders, namely, the killing of a number of women and children who were being transported in an ambulance;

      II Seventh Day Adventists buildings Mugonero, that is, the killing and/or inflicting (grievous) bodily...