Minister of Defence not authorised to disclose UNPROFOR mission documents
In its judgment the Administrative Jurisdiction Division held that it is the UN that decides ‘whether and, if so, to what extent its documents are made public’. The Convention on the Privileges and Immunities of the United Nations states that all documents of the UN are inviolable. By adopting this provision, the Members of the UN elected to confer inviolability on all UN documents ‘without reservation’. In the opinion of the Administrative Jurisdiction Division, ‘it is not within the purview of a national court to concern itself with a decision made by the Members of the UN’. The UN considers the requested documents confidential, so they cannot be made public. The Administrative Jurisdiction Division, the highest administrative court in the Netherlands, has determined that the UN does not allow the Dutch Minister of Defence any ‘latitude to grant requests for disclosure of these documents’. The Division is also of the opinion that article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) does not apply to an application for information under the Government Information (Public Access) Act (Wet openbaarheid van bestuur), because the right to submit such an application applies to all persons in equal measure. Since the person or aim of the individual requesting information plays no role in the decision, civil rights and obligations within the meaning of the ECHR are not at issue.
Initially, the Minister of Defence rejected the application by invoking the Government Information (Public Access) Act. Amsterdam district court ruled in April 2009 that the Convention on the Privileges and Immunities of the United Nations prevented the Minister from granting the surviving relatives’ application for information. Today the Administrative Jurisdiction Division upheld that judgment.
A civil suit brought by the citizens’ association ‘Mothers of Srebrenica’ against the State of the Netherlands and the United Nations is currently pending before The Hague court of appeal. Mothers of Srebrenica holds the State and the UN responsible for the fall of Srebrenica and is suing for compensation. These proceedings are unrelated to the Administrative Jurisdiction Division’s 3 March decision.
No appeal can be brought against judgments delivered by the Administrative Jurisdiction Division of the Council of State.
Read the full text of the judgment in case no. 200903769/1 here.
Representatives of the media can contact the Council of State press office for more information: +31 70-426 48 12.