1995

ITFY

Prosecutor v Dusko Tadic AKA Dule Decision on the defence motion on jurisdiction

The defence challenges the powers of the International Tribunal for the prosecutions …under there heads: 1. the alleged improper establishment of the International Tribunal 2. the improper grant of primacy to the International Tribunal 3. challenges to the subject matter jurisdiction fo the International Tribunal {The principle ‘competence de la competence’ is inherent jurisdiction to any judicial or arbitral tribunal, and consists of its jurisdiction to determine its own jurisdiction, it had not to be provided in the constitutive document} Resolution I. The establishment of the International Tribunal 1. The attack on the competence … is based on .. that the action of the Security Council in establishing the international tribunal and in adopting the Statute under which it functions is beyond power 3. Essential to these submissions is, of course, the concept that this Trial Chamber has the capacity to review and rule upon the legality of the acts of the Security Council in Establishing the International Tribunal 4. … The validity of the creation of the International Tribunal is not truly a matter of jurisdiction but rather of the lawfulness of its creations involving scrutiny of the powers of the Security Council 5. …. This International Tribunal is not a constitutional court set up to scrutinise the actions of organs of the United Nations. It is, on the contrary, a criminal tribunal with clearly defined powers, involving a quite specific and limited criminal jurisdiction … it will have no authority to investigate the legality of its creations by the Security Council 6. … This is the first time that the international community has created a court with criminal jurisdiction …these ad hoc Tribunals represents an important step towards the establishment of a permanent international criminal tribunal. In this context, the Trial Chamber considers that it would be inappropriate to dismiss without comment the accused’s contentions that the establishment of the International Tribunal by the Security Council was beyond power and ill founded political actions, not reasonably aimed at restoring and maintaining peace and the International Tribunal is not duly established by law. 7. The Security Council has a broad discretion in exercising its authority under Chapter VII and there are few limits on the exercise of that power. As indicated in the travaux préparatoires: “Wide freedom of judgement is left as regards the moment {the SC} may choose to intervene and the means to be applied, with sole reserve that it should act in accordance with the purpose and principles of the {UN}” The broad discretion given to the Security Council in the exercise of its Chapter VII authority itself suggest that decisions taken under this head are nor reviewable 10. The Defence relies on … what has been said by the ICJ in three cases: …(Expenses advisory opinion) …(Namibia Advisory Opinion)…(Lockerbie decision) In the first of these … the Court specifically stated that, unlike the legal systems of some States, there exists no procedure for determining the validity of acts of organs of the United Nations. It referred to proposals at the time of drafting of the Charter that such a power should be given to the court and to the rejection of those proposals

11. In the second of these cases .. the Court dealt very specifically with this matter, stating that: “Undoubtedly, the Court does not possess powers of judicial review or appeal in respect of the decisions taken by the United Nations organs concerned” 12. .. in the Lockerbie decision, Judge Weeranmantry… said that “it is not for this Court to sit in review on a given resolution of the Security Council” 13. These opinions of the Court clearly provide no basis for the international tribunal to review the actions of the Security Council, indeed, they are authorities to the contrary. 15. Support for the view that the Security Council cannot act arbitrarily or for an ulterior purpose is found in the nature of the Charter as a treaty delegating certain powers to the United Nations. In fact, such a limitations is almost a corollary of the principle that the organs of the United Nations must act in accordance with the powers delegated them. 16. Although it is not for this Trial Chamber to judge the reasonableness of the acts of the Security Council, it is without doubt that, with respect to the former Yugoslavia, the Security Council did not act arbitrarily. To the contrary, the Security Council´s establishment of the International Tribunal represents its informed judgement, after great deliberation, that violations of international humanitarian law were occurring in the former Yugoslavia and that such violations created a threat to the peace. 23. … The setting up of the International Tribunal under Chapter VII is … certainly not a justiciable issue but one involving considerations of high policy and of a political nature 32 Then it is said that the international law requires that criminal courts be independent and impartial and that no court created by a political body such as the Security Council can have those characteristics… the question whether a court is independent and impartial depends not upon the body that creates it but upon its constitutions, its judges and the way in which they function B. Primacy of the International Tribunal 41. …the accused not being a State lacks the locus standi to raise the issue of primary, which involves a plea that the sovereignty of a State has been violated … (Israel v Eichman)… it is pertinent to note that the challenge to the primacy of the International Tribunal has been made against the express intent of the two States most closely affected by the indictment against the accused – Bosnia and Hersegovia and the Federal Republic of Germany… have unconditionally accepted the jurisdiction of the International Tribunal 42. … crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic nature. They are really crimes which are universal in nature, well recognised in international law as serious breaches of international humanitarian law, and transcending the interest of any one State … there can therefore be no objection to an international tribunal properly constituted trying these crimes on behalf of the international community 44. … The crimes with which the accused is charged form part of customary international law and existed well before the establisment of the International Tribunal II. Subject matter jurisdiction 50. What is contended is that for article 2 {Geneva Conventions of 1949} to have applications there must exist a state of international conflict and that none in fact existed at any relevant time or place. 60. The competence of the International Tribunal extends to serious violations of international humanitarian law that are a part if customary law. International humanitarian law includes international rules designated to solve humanitarian problems arising from international or non- international armed conflicts … the International Tribunal is not called upon to apply conventional law but instead is mandated to apply customary international law. Therefore, the element of internationality forms no jurisdictional criterion even if the Hague Convention was originally envisaged by the Contracting Parties to apply to international conflicts