PERMANENT REPRESENTATION OF THE KINGDOM OF THE NETHERLANDS TO THE UNITED NATIONS The
Ambassador
New York, 21 December 2007
NYV/2007/3766
On the occasion of the signing of the Agreement between the Kingdom of the Netherlands
and the United Nations concerning the Headquarters of the Special Tribunal for Lebanon,
I would like to refer to the discussions held between representatives of the United
Nations and the Netherlands concerning the interpretation of certain provisions of
the Agreement.
I have the honour to confirm on behalf of the Government of the Netherlands the following
understandings.
With respect to article 8, paragraph 4, it is the understanding of the Parties that
the Tribunal will use its best efforts to notify the competent authorities in advance
of any exclusion or expulsion of persons from its premises, which, however, may not
always be possible due to exigencies. In the latter circumstances the Tribunal will
notify the competent authorities of the expulsion or exclusion without delay.
With respect to article 11 it is the understanding of the Parties that the vehicles
of the Tribunal will be entitled to “diplomatic corps” plates and corresponding status.
Vehicles of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the
Head of the Defence Office and staff will be entitled to plates in accordance with
the practice of the host State and their status as specified in the Agreement.
With respect to article 13, paragraph 5, it is the understanding of the Parties that
that this paragraph extends to communications between Tribunal offices, installations,
facilities and means of transport, within and outside the host State, in particular
with Tribunal offices in Lebanon and the United States of America.
With respect to article 15 it is the understanding of the Parties that the value-added
tax paid in respect of goods supplied or services rendered to the Tribunal will be
refunded to the Tribunal on application. The tax on hydrocarbons such as fuel oil
and motor fuels which the Tribunal requires for official purposes will be refunded
to the Tribunal on application. The Tribunal will be exempted at the time of purchase
from excise duties on goods supplied and required for official purposes, purchased
from a ‘accijnsgoederenplaats’, if a permit thereto is acquired from the national
tax Authority. The Tribunal will submit applications for reimbursement within three
months after the quarter of the calendar year during which payment was made for goods
supplied or services rendered and will send the relevant documents together with the
applications to the national tax authority. The Tribunal undertakes to facilitate
the verification by the competent authorities of the facts on which the tax exemption
or tax refund can be based. Reimbursement of the above-mentioned taxes and duties
will be done in conformity with the applicable tax regulations and quotas set by the
Government.
In addition, both Parties understand the reference to “general principles” in article
15, paragraph 3, to refer back to the exemptions provided for in article 15, paragraph
2.
It is the understanding of the Parties that during their term of office, the judges,
the Prosecutor, the Deputy Prosecutor, the Registrar, and staff are exempted from
taxation in the host State under article 17, paragraphs 1 and 2, and article 18, paragraphs
1, 2 and 3. Article 17, paragraph 3, and article 18, paragraph 4, specify that periods
during which these persons are present in the host State for the discharge of their
functions “shall not be considered as periods of residence”. These two provisions
are not designed to create tax exemptions in addition to the exemptions under article
17, paragraphs 1 and 2, and article 18, paragraphs 1, 2 and 3. They clarify that,
in situations where the judges, the Prosecutor, the Deputy Prosecutor, the Registrar
or staff maintain residence in the host State after the expiry of their term of office,
no taxes will be due in relation to exemptions which were applicable during the period
in which these persons held office.
With respect to article 17, paragraph 4, according to which the “host State shall
not be obliged to exempt from income tax pensions or annuities paid to former judges,
Prosecutors, Deputy Prosecutors, and Registrars and their members of the family forming
part of their household”, it is understood by both Parties that former judges, Prosecutors,
Deputy Prosecutors, and Registrars and their members of the family forming part of
their household would only be subject to taxation by the host State if, upon expiry
of their respective terms of office, they reside in the territory of the host State
or are nationals of the host State. This explanation also applies, mutatis mutandis, to article 18, paragraph 5, which contains a provision similar to article 17, paragraph
4, with respect to former staff and their members of the family forming part of their
household.
It is the understanding of the Parties that article 19, paragraph 2, concerns the
internal rules and regulations of the Tribunal and that these rules and regulations
do not concern the granting of privileges and immunities by the host State to personnel
referred to in article 19.
It is the understanding of the Parties that a procedure will be drawn up by the Registrar
in which it will be ensured that the document mentioned in article 23, paragraph 2,
will be handed over to the witness as soon as possible, at the latest upon arrival
in the host State.
Both Parties understand that article 24 applies also to victims participating in proceedings
for reparation.
It is the understanding of the Parties that if the Tribunal makes use of gratis personnel,
this personnel will be considered experts under article 25.
With respect to article 28, it is the understanding of the Parties that Representatives
of States participating in meetings of the Management Committee are, while exercising
their functions and during the journey to and from the host State, to be regarded
as falling within the ambit of the Convention on the Privileges and Immunities of
the United Nations of 13 February 1946 and that their privileges and immunities will
be waived in accordance with Section 14 of the Convention.
With respect to article 32, it is the understanding of the Parties that the social
security regime will be established in consultation with the competent authorities
of the host State.
With respect to article 35, both Parties understand that visas will be issued in accordance
with the laws of the host State. It is also the understanding of both Parties that
in exceptional cases, such as where the applicant is unable to pay, visas for visitors
who are family members of a detained person, will, at the discretion of the competent
authorities of the host State, be issued free of charge or for a reduced fee.
With respect to article 39, paragraph 6, it is the understanding of both Parties that
this paragraph ensures that the transport of persons in custody of the Tribunal for
purposes of the Tribunal will not be delayed by any impediment, such as the immigration
and asylum procedures of the host State. The asylum law and procedures of the host
State require that asylum seekers apply for asylum in person at an asylum seeker centre
within the host State. As this procedure would hamper the immediate transport of the
person for purposes of the Tribunal, its application would be undesirable in this
context. It is understood that paragraph 6 does not deny a person in custody of the
Tribunal the ability to apply for asylum or another legal basis to remain in the Netherlands
under the laws of the host State at a time other than during transport. The term “transport”
in this article refers to the transportation of a person within the territory of the
host State. The term “transfer” in this article refers to the transportation of a
person from one State to another.
Article 42 addresses the issue of provisional release. Both Parties decided to regulate
in this Agreement only those aspects relating to provisional release into a State
other than the host State. This is reflected in the language of article 42, paragraph
1. The Agreement does not address the conditions and modalities of provisional release
into the host State, because provisional release into the host State is not foreseen.
Article 42, paragraph 2, governs the re-entry into the host State of persons granted
provisional release. The practice of the International Criminal Tribunal for the former
Yugoslavia (ICTY) has shown that there may be situations in which persons granted
provisional release may need to return to the host State for purposes related to proceedings
before the Tribunal. Paragraph 2 clarifies that the host State will facilitate the
transfer of such persons. The host State has entered into an arrangement to that effect
with the ICTY, by way of an exchange of letters of December 2003, which governs “short-term
stays on Dutch soil” of persons granted provisional release by the ICTY. Paragraph
3 of this article provides a basis for both Parties to conclude such and other types
of practical arrangements concerning the implementation of article 42.
Without prejudice to the rules and regulations of the Tribunal, it is the understanding
of the Parties that the following persons will, for the purposes of this Agreement,
and this Agreement only, be considered as members of the family forming part of the
household of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the
Head of the Defence Office and staff:
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a) pouses of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the Head
of the Defence Office and staff;
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b) children of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the
Head of the Defence Office and staff who are under the age of 18;
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c) children of the judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the
Head of the Defence Office and staff aged 18 or over, but not older than 27, provided
that they formed part of the household prior to their first entry into the host State
and still form part of this household, and that they are unmarried, financially dependent
on the judge, Prosecutor, Deputy Prosecutor, Registrar, Head of the Defence Office
or member of the staff of the Tribunal concerned and are attending full time education
in the host State;
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d) children of judges, the Prosecutor, the Deputy Prosecutor, the Registrar, the Head
of the Defence Office and staff who are aged 18 or over, but not older than 23, will
also be recognized as members of the family forming part of the household if they
are not studying as long as they are unmarried and financially dependent on the judge,
Prosecutor, Deputy Prosecutor, Registrar, Head of the Defence Office or member of
the staff of the Tribunal concerned;
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e) other persons who, in exceptional cases or for humanitarian reasons, the Tribunal
and the host State decide to treat as members of the family forming part of the household.
It is the understanding of the Parties that any issues arising from the foregoing
understanding will be resolved by the Registrar and the competent authorities of the
host State on a case-by-case basis.
In conformity with the practice that has developed, with respect to representatives
of independent bodies of counsel or legal associations, media and non-governmental
organizations in connection with the International Criminal Tribunal for the former
Yugoslavia and the Special Court for Sierra Leone, the host State will use its best
efforts to: a) facilitate the entry into and stay in the host State of such representatives,
deployed in, or visiting the host State in connection with activities relating to
the Tribunal; and, b) where appropriate and in consultation with the Tribunal, the
possible extension of visa while in the host State.
I should be grateful if you could confirm on behalf of the United Nations that the
above is also the understanding of the United Nations.
Please accept, Excellency, the assurances of my highest consideration.
FRANK MAJOOR
H.E. Mr. Nicolas Michel
Under-Secretary-General
The Legal Counsel
United Nations Headquarters
Room 3427A
New York, NY 10017
United States of America