Chapter VII. Decisions and Advisory Opinions of International Tribunals

International Tribunal for the Former Yugoslavia

PROSECUTOR V. TADIC1

(JURISDICTION)2

International Tribunal for the Former Yugoslavia

Trial Chamber. 10 August 1995

(McDonald, Presiding Judge; Stephen and Vohrah, Judges)

Appeals Chamber. 2 October 1995

(Cassese, President; Li, Deschênes, Abi-Saab and Sidhwa, Judges)

SUMMARY: The facts:—The accused, Mr. Dusko Tadic, was charged by the Prosecutor of the International Tribunal for the Former Yugoslavia3 with grave breaches of the Geneva Conventions, 1949, serious violations of the laws and customs of war and crimes against humanity, under articles 2, 3 and 5 of the Statute of the Tribunal.4 The Prosecutor alleged that the accused had taken part in the murder, rape, torture and ill-treatment of persons detained at a prison camp maintained by Bosnian Serbs at Omarska in the Prijedor region of Bosnia and Herzegovina during the summer of 1992 and in the murder and ill-treatment of other captured persons.

The accused challenged the jurisdiction of the Tribunal on the grounds that:

(1) The establishment of the Tribunal and the adoption of its Statute had been beyond the powers of the Security Council, so that the Tribunal had not been established by law and was not entitled to try the accused;

“Article 2: Grave breaches of the Geneva Conventions of 1949

“The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions of the relevant Geneva Convention:

(

1. Wilful killing;

   (b) Torture of inhuman treatment, including biological experiments; (c) Wilfully causing great suffering or serious injury to body or health;

   (d) Extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly;

   (e) Compelling a prisoner of war or a civilian to serve in the forces of a hostile power;

   (f) Wilfully depriving a prisoner of war or a civilian of the rights of fair and regular trial;

   (g) Unlawful deportation or transfer or unlawful confinement of a civilian; (h) Taking civilians as hostages.

   “Article 3: Violations of the laws or customs of war

   “The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to: (

1. Employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

   (b) Wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

   (c) Attack or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings;

   (d) Seizure of, destruction or willful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;

   (e) Plunder of private property.

   “Article 5: Crimes against Humanity

   “The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in armed conflict, whether international or internal in character, and directed against any civilian population: (

1. Murder;

   (b) Extermination;

   (c) Enslavement;

   (d) Deportation;

   (e) Imprisonment;

   (f) Torture;

   (g) Rape;

   (h) Persecutions on political, racial and religious grounds;

   ( i i) Other inhumane acts.”

   No charges were brought under article 4 of the Statute, which gives the Tribunal jurisdiction over allegations of genocide.

   (2) The primacy given to the Tribunal over national courts by article 9 of the Statute was contrary to international law. The accused had a right to trial before a national court;

   (3) The Tribunal lacked subject-matter jurisdiction, because under international law the offences listed in articles 2, 3, and 5 of the Statute of the Tribunal could only be committed in the course of an international armed conflict and no such conflict had been taking place in the Prijedor region at the time the offences were allegedly committed.

   Both the Prosecutor and the United States of America, which submitted arguments as an amicus curiae, contested these grounds.

   Held (by the Trial Chamber):—The challenge to the establishment of the Tribunal was incompetent. The other grounds of challenge were dismissed.

   (1) The Tribunal did not have the power to question the lawfulness of the actions of the Security Council in establishing the Tribunal. There was no basis in international law for holding that an international court or tribunal had powers of judicial review in respect of decisions of the Security Council in the exercise of its powers to restore and maintain international peace and security under Chapter VII of the Charter of the United Nations. In particular, the decision that the situation in the former Yugoslavia constituted a threat to international peace and security was a political, non-justiciable decision by the Security Council. Moreover, the action of the Security Council in establishing the Tribunal had been a reasonable measure within the scope of its powers under Article 41 of the Charter of the United Nations.

   (2) The accused lacked standing to raise the issue of the primacy of the Tribunal over national courts. In addition, the accused had failed to establish that there was a peremptory norm of international law to the effect that a defendant was entitled to trial before a particular national court.

   (3) Article 2 of the Tribunal’s Statute was a self-contained provision and did not import all the requirements of the Geneva Conventions’ system of grave breaches. In particular, there was no requirement that the offences enumerated in that Article had to have been committed in the context of an international armed conflict.

   (4) The jurisdiction of the Tribunal to try persons accused of violations of the laws and customs of war under article 3 of the Statute also did not depend upon whether the armed conflict in which those violations were alleged to have been committed was characterized as international or internal. The customary international law of armed conflict included rules applicable to internal armed conflicts, as did common article 3 of the Geneva Conventions, violations of which constituted war crimes.

   (5) Crimes against humanity formed part of customary international law and as such were not limited to crimes committed in the course of an international armed conflict. The decision of the International Military Tribunal at Nürnberg to the opposite effect was due to the interpretation which that Tribunal put upon the wording of its Charter and did not reflect contemporary international law.

   The accused appealed to the Appeals Chamber of the International Tribunal.

   Held (by the Appeals Chamber):—The appeal was dismissed.

   1. The legality of the establishment of the Tribunal

      (Judge Li dissenting) The Tribunal was entitled to inquire, in the context of a challenge to its jurisdiction, into the legality of its own establishment by the Security Council.

      (Unanimously) In the circumstances, the Council had been entitled to establish the Tribunal.

      (1) The question whether the Tribunal had been lawfully established was a question of jurisdiction, since the Tribunal would lack jurisdiction if it had not been lawfully established.

      (2) Although the Tribunal was a subsidiary organ of the Security Council, it was a judicial body and thus different from most of the subsidiary organs which the Council had established. While it did not possess powers of judicial review in respect of resolutions of the Security Council, it had an incidental jurisdiction to determine whether it had been lawfully established which it could exercise solely for the purpose of ascertaining whether it had primary jurisdiction over the case before it.

      (3) There was no doctrine of political question or non-justiciability in international law and the Tribunal was not debarred by any such doctrine from examining the accused’s challenge to the legality of the establishment of the Tribunal.

      (4) The Security Council enjoyed a wide discretion in determining what constituted a threat to international peace and security, a breach of the peace or an act of aggression and what measures were appropriate to deal with such a situation. That discretion was not, however, unlimited. In the present case, the Council’s determination that the situation in the former Yugoslavia constituted a threat to the peace was clearly within the scope of that discretion. Similarly, the establishment of the Tribunal was a legitimate exercise by the Council of its power to take non-military measures under article 41 of the Charter.

      (5) While there was a general principle of law that a criminal tribunal had to be “established by law”, that principle did not apply in such a way that the creation of an international criminal tribunal by resolution of the Security Council would be unlawful. Although the Security Council was not a legislature, it was an organ of the United Nations competent to establish a tribunal with criminal jurisdiction. Provided the tribunal subsequently functioned in accordance with legal standards, it satisfied the general principle of legality.

   2. Primacy over national courts

      (Unanimously) The challenge to the primacy of the Tribunal was unfounded and had to be dismissed.

      (1) Although the accused had been the subject of an investigation in Germany, he had not been brought to trial there. There was accordingly no question of a breach of the principle ne bis in idem or of needing to invoke the provisions of article 10 of the Statute, which provided for the holding of a new trial in exceptional circumstances.

      (2) The accused was entitled to raise an objection to the jurisdiction of the Tribunal based upon the supposed infringement of State sovereignty. The national authorities to the contrary, such as the decisions of the Israel Supreme Court in Eichmann5 and the United States District Court in...