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Prosecutor v Dusko Tadic, Decision on the defence motion for interlocutory appeal on jurisdiction, IT-94-1-AR72, Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia, 2 October 1995 Ige F. Dekker and Ramses A. Wessel

Relevance of the case

It is a truism that the powers of international organizations are not unlimited. The principle of the attribution, or conferral, of powers is undisputed and lies at the heart of debates on the competences of international organizations. A more specific question concerns whether and to what extent organs of an international organization may establish other organs. This is not unusual, and this competence was for instance recognized by the International Court of Justice in the Effect of Awards case, analysed in the previous Part.

The importance of the present case is that it reveals that the competence of an organ to decide on it own competence (often referred to as the principle of Kompetenz- Kompetenz, or la competence de la competence) may be far-reaching. The question arose whether the UN Security Council had not exceeded its powers by establishing the International Criminal Tribunal for the Former Yugoslavia (ICTY) in 1993. After all, the Security Council was a political body with no judicial powers; yet, it had created a judicial body which could prosecute and try individuals for international crimes.1 From the perspective of the law of international organizations, the most interesting aspect of the Tadic case is that the Appeals Chamber of the ICTY was asked to decide whether the Security Council acted ultra vires in creating the ICTY.[1] [2]

I. Facts of the case

The ICTY (or (International) Tribunal) was established by the Security Council on 25 May 1993 for the ‘sole purpose of prosecuting persons responsible for serious violations of international humanitarian law committed in the territory of the former Yugoslavia’.[3] It was the first international criminal tribunal since the Nuremberg and Tokyo Military Tribunals prosecuted and convicted major German and Japanese war criminals directly after the Second World War.

Mr Dusko Tadic was the first to be tried by the ICTY. As a member of the paramilitary forces he supported the attack on the district of Prijedor in the current Republika Srpska (in Bosnia and Herzegovina) during the war in the former Yugoslavia in the first half of the 1990s. In particular, he was accused of taking part, in May 1993, in the Serbian attacks on Bosnian Muslim and Croat population centres in the region of Prijedor forcing most Muslims and Croats from their homes and confining many thousands, including more than 3,000 who were held in the Omarska camp, a former mining complex. Tadic was arrested by German police in Munich in February 1994 on suspicion of having committed offences at the Omarska camp that constituted crimes under German law.

Later that year, the ICTY issued a formal request to Germany for the transfer of Tadic to the Tribunal. He arrived in The Hague in April 1995. The indictment by the Prosecutor charged him with thirty-four counts involving grave breaches of the Geneva Conventions, violations of the laws and customs of war, and crimes against humanity.[4] In judgments on the merits of the case he was found guilty for nine counts, partially guilty for two counts and not guilty for twenty-three counts, and—in 2000— sentenced to a twenty-year imprisonment.

II. The legal question

Before the International Tribunal could go into the merits of the case, it had to decide on some preliminary but fundamental questions. Tadic confronted the Tribunal with three propositions:

  • a) the Tribunal was unlawfully established;
  • b) the Tribunal’s primacy over competent domestic courts was unjustified; and
  • c) the Tribunal lacked subject-matter jurisdiction in this case.

For the purposes of the present case note we limit ourselves to the first point, which concerns a crucial constitutional issue, namely the powers of the Security Council to establish subsidiary organs with judicial functions. The Trial Chamber of the Tribunal dismissed Tadic’s arguments on this point on the basis that the objections did not go ‘so much to its jurisdiction, as to the unreviewable lawfulness of the actions of the Security Council’.[5] The Appeals Chamber of the Tribunal held otherwise and discussed extensively the constitutional issues raised by the appellant Tadic, especially (1) whether there is a legal basis for the Tribunal in the UN Charter, and (2) whether the structure and functioning of the Tribunal satisfied basic requirements of the rule of law. However, before that the Appeals Chamber had to answer the question whether it had jurisdiction to deal with these constitutional issues.

III. Excerpts

[...]

[The following part deals with the Tribunal’s jurisdiction to review its establishment by the Security Council]

[...]

15. To assume that the jurisdiction of the International Tribunal is absolutely limited to what the Security Council ‘intended’ to entrust it with, is to envisage the International Tribunal exclusively as a ‘subsidiary organ’ of the Security Council (see United Nations Charter, Arts. 7(2) & 29), a ‘creation’ totally fashioned to the smallest detail by its ‘creator’ and remaining totally in its power and at its mercy. But the Security Council not only decided to establish a subsidiary organ (the only legal means available to it for setting up such a body), it also clearly intended to establish a special kind of ‘subsidiary organ’: a tribunal.

[...]

  • 17. Earlier, the [International Court of Justice] had derived the judicial nature of the United Nations Administrative Tribunal (‘UNAT’) from the use of certain terms and language in the Statute and its possession of certain attributes. Prominent among these attributes of the judicial function figures the power provided for in Article 2, paragraph 3, of the Statute of UNAT: ‘In the event of a dispute as to whether the Tribunal has competence, the matter shall be settled by the decision of the Tribunal.’ [.]
  • 18. This power, known as the principle of ‘Kompetenz-Kompetenz’ in German or ‘la competence de la competence’ in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal, consisting of its ‘jurisdiction to determine its own jurisdiction.’ It is a necessary component in the exercise of the judicial function and does not need to be expressly provided for in the constitutive documents of those tribunals, although this is often done (see e.g., Statute of the International Court of Justice, Art. 36, para. 6). But in the words of the International Court of Justice: ‘[T]his principle, which is accepted by the general international law in the matter of arbitration, assumes particular force when the international tribunal is no longer an arbitral tribunal [.] but is an institution which has been pre-established by an international instrument defining its jurisdiction and regulating its operation.’ (Nottebohm Case (Liech. v. Guat.), 1953 I.C.J. Reports 7, 119 (21 March).)

[...]

22. In conclusion, the Appeals Chamber finds that the International Tribunal has jurisdiction to examine the plea against its jurisdiction based on the invalidity of its establishment by the Security Council.

[...]

[The following part deals with issues of constitutionality]

[...]

  • 3. The Establishment Of The International Tribunal As A Measure Under Chapter VII
  • 32. As with the determination of the existence of a threat to the peace, a breach of the peace or an act of aggression, the Security Council has a very wide margin of discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of the measures chosen, as well as their potential contribution to the restoration or maintenance of peace. But here again, this discretion is not unfettered; moreover, it is limited to the measures provided for in Articles 41 and 42. Indeed, in the case at hand, this last point serves as a basis for the Appellant’s contention of invalidity of the establishment of the International Tribunal.

In its resolution 827, the Security Council considers that ‘in the particular circumstances of the former Yugoslavia’, the establishment of the International Tribunal ‘would contribute to the restoration and maintenance of peace’ and indicates that, in establishing it, the Security Council was acting under Chapter VII (S.C. Res. 827, U.N. Doc. S/RES/827 (1993)). However, it did not specify a particular Article as a basis for this action.

Appellant has attacked the legality of this decision at different stages before the Trial Chamber as well as before this Chamber on at least three grounds: [...]

  • (a) What Article of Chapter VII Serves As A Basis For The Establishment Of A Tribunal?
  • 33. The establishment of an international criminal tribunal is not expressly mentioned among the enforcement measures provided for in Chapter VII, and more particularly in Articles 41 and 42.

Obviously, the establishment of the International Tribunal is not a measure under Article 42, as these are measures of a military nature, implying the use of armed force. Nor can it be considered a ‘provisional measure’ under Article 40. These measures, as their denomination indicates, are intended to act as a ‘holding operation’, producing a ‘stand-still’ or a ‘cooling-off’ effect, ‘without prejudice to the rights, claims or position of the parties concerned.’ (United Nations Charter, art. 40.) [...]

34. Prima facie, the International Tribunal matches perfectly the description in Article 41 of ‘measures not involving the use of force.’ Appellant, however, has argued before both the Trial Chamber and this Appeals Chamber, that: ‘. [I]t is clear that the establishment of a war crimes tribunal was not intended. The examples mentioned in this article focus upon economic and political measures and do not in any way suggest judicial measures.’ (Brief to Support the Motion [of the Defence] on the Jurisdiction of the Tribunal before the Trial Chamber of the International Tribunal, 23 June 1995 (Case No. IT-94-1-T), at para. 3.2.1 (hereinafter Defence Trial Brief).)

It has also been argued that the measures contemplated under Article 41 are all measures to be undertaken by Member States, which is not the case with the establishment of the International Tribunal.

35. The first argument does not stand by its own language. Article 41 reads as follows: ‘The Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the Members of the United Nations to apply such measures. These may include complete or partial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance of diplomatic relations.’ (United Nations Charter, art. 41.)

It is evident that the measures set out in Article 41 are merely illustrative examples which obviously do not exclude other measures. All the Article requires is that they do not involve ‘the use of force.’ It is a negative definition.

That the examples do not suggest judicial measures goes some way towards the other argument that the Article does not contemplate institutional measures implemented directly by the United Nations through one of its organs but, as the given examples suggest, only action by Member States, such as economic sanctions (though possibly coordinated through an organ of the Organization). However, as mentioned above, nothing in the Article suggests the limitation of the measures to those implemented by States. The Article only prescribes what these measures cannot be. Beyond that it does not say or suggest what they have to be.

Moreover, even a simple literal analysis of the Article shows that the first phrase of the first sentence carries a very general prescription which can accommodate both institutional and Member State action. The second phrase can be read as referring particularly to one species of this very large category of measures referred to in the first phrase, but not necessarily the only one, namely, measures undertaken directly by States. It is also clear that the second sentence, starting with ‘These [measures]’ not ‘Those [measures]’, refers to the species mentioned in the second phrase rather than to the ‘genus’ referred to in the first phrase of this sentence.

36. Logically, if the Organization can undertake measures which have to be implemented through the intermediary of its Members, it can a fortiori undertake measures which it can implement directly via its organs, if it happens to have the resources to do so. It is only for want of such resources that the United Nations has to act through its Members. But it is of the essence of ‘collective measures’ that they are collectively undertaken. Action by Member States on behalf of the Organization is but a poor substitute faute de mieux, or a ‘second best’ for want of the first. This is also the pattern of Article 42 on measures involving the use of armed force.

In sum, the establishment of the International Tribunal falls squarely within the powers of the Security Council under Article 41.

  • (b) Can The Security Council Establish A Subsidiary Organ With Judicial Powers?
  • 37. The argument that the Security Council, not being endowed with judicial powers, cannot establish a subsidiary organ possessed of such powers is untenable: it results from a fundamental misunderstanding of the constitutional set-up of the Charter.

Plainly, the Security Council is not a judicial organ and is not provided with judicial powers (though it may incidentally perform certain quasi-j udicial activities such as effecting determinations or findings). The principal function of the Security Council is the maintenance of international peace and security, in the discharge of which the Security Council exercises both decision-making and executive powers.

38. The establishment of the International Tribunal by the Security Council does not signify, however, that the Security Council has delegated to it some of its own functions or the exercise of some of its own powers. Nor does it mean, in reverse, that the Security Council was usurping for itself part of a judicial function which does not belong to it but to other organs of the United Nations according to the Charter. The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia.

The General Assembly did not need to have military and police functions and powers in order to be able to establish the United Nations Emergency Force in the Middle East (‘UNEF’) in 1956. Nor did the General Assembly have to be a judicial organ possessed of judicial functions and powers in order to be able to establish UNAT. In its advisory opinion in the Effect of Awards, the International Court of Justice, in addressing practically the same objection, declared: ‘[T]he Charter does not confer judicial functions on the General Assembly [...] By establishing the Administrative Tribunal, the General Assembly was not delegating the performance of its own functions: it was exercising a power which it had under the Charter to regulate staff relations.’ (Effect of Awards, at 61.)

  • (c) Was The Establishment Of The International Tribunal An Appropriate Measure?
  • 39. The third argument is directed against the discretionary power of the Security Council in evaluating the appropriateness of the chosen measure and its effectiveness in achieving its objective, the restoration of peace.

Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys wide discretionary powers in this regard; and it could not have been otherwise, as such a choice involves political evaluation of highly complex and dynamic situations.

It would be a total misconception of what are the criteria of legality and validity in law to test the legality of such measures ex post facto by their success or failure to achieve their ends (in the present case, the restoration of peace in the former Yugoslavia, in quest of which the establishment of the International Tribunal is but one of many measures adopted by the Security Council).

  • 40. For the aforementioned reasons, the Appeals Chamber considers that the International Tribunal has been lawfully established as a measure under Chapter VII of the Charter.
  • 4. Was The Establishment Of The International Tribunal Contrary To The General Principle Whereby Courts Must Be ‘Established By Law’?
  • 41. Appellant argues that the right to have a criminal charge determined by a tribunal established by law is one which forms part of international law as a ‘general principle of law recognized by civilized nations’, one of the sources of international law in Article 38 of the Statute of the International Court of Justice. In support of this assertion, Appellant emphasises the fundamental nature of the ‘fair trial’ or ‘due process’ guarantees afforded in the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the American Convention on Human Rights. Appellant asserts that they are minimum requirements in international law for the administration of criminal justice.

[...]

43. Indeed, there are three possible interpretations of the term ‘established by law.’ First, as Appellant argues, ‘established by law’ could mean established by a legislature. Appellant claims that the International Tribunal is the product of a ‘mere executive order’ and not of a ‘decision making process under democratic control, necessary to create a judicial organisation in a democratic society.’ Therefore Appellant maintains that the International Tribunal not been ‘established by law.’ (Defence Appeal Brief, at para. 5.4.)

[...]

It is clear that the legislative, executive and judicial division of powers which is largely followed in most municipal systems does not apply to the international setting nor, more specifically, to the setting of an international organization such as the United Nations. Among the principal organs of the United Nations the divisions between judicial, executive and legislative functions are not clear cut. Regarding the judicial function, the International Court of Justice is clearly the ‘principal judicial organ’ (see United Nations Charter, art. 92). There is, however, no legislature, in the technical sense of the term, in the United Nations system and, more generally, no Parliament in the world community. That is to say, there exists no corporate organ formally empowered to enact laws directly binding on international legal subjects.

It is clearly impossible to classify the organs of the United Nations into the abovediscussed divisions which exist in the national law of States. Indeed, Appellant has agreed that the constitutional structure of the United Nations does not follow the division of powers often found in national constitutions. Consequently the separation of powers element of the requirement that a tribunal be ‘established by law’ finds no application in an international law setting. The aforementioned principle can only impose an obligation on States concerning the functioning of their own national systems.

44. A second possible interpretation is that the words ‘established by law’ refer to establishment of international courts by a body which, though not a Parliament, has a limited power to take binding decisions. In our view, one such body is the Security Council when, acting under Chapter VII of the United Nations Charter, it makes decisions binding by virtue of Article 25 of the Charter.

According to Appellant, however, there must be something more for a tribunal to be ‘established by law.’ Appellant takes the position that, given the differences between the United Nations system and national division of powers, discussed above, the conclusion must be that the United Nations system is not capable of creating the International Tribunal unless there is an amendment to the United Nations Charter. We disagree. It does not follow from the fact that the United Nations has no legislature that the Security Council is not empowered to set up this International Tribunal if it is acting pursuant to an authority found within its constitution, the United Nations Charter. As set out above (paras 28-40) we are of the view that the Security Council was endowed with the power to create this International Tribunal as a measure under Chapter VII in the light of its determination that there exists a threat to the peace.

In addition, the establishment of the International Tribunal has been repeatedly approved and endorsed by the ‘representative’ organ of the United Nations, the General Assembly: this body not only participated in its setting up, by electing the Judges and approving the budget, but also expressed its satisfaction with, and encouragement of the activities of the International Tribunal in various resolutions. (See G.A. Res. 48/88 (20 December 1993) and G.A. Res. 48/143 (20 December 1993), G.A. Res. 49/10 (8 November 1994) and G.A. Res. 49/205 (23 December 1994).)

  • 45. The third possible interpretation of the requirement that the International Tribunal be ‘established by law’ is that its establishment must be in accordance with the rule of law. This appears to be the most sensible and most likely meaning of the term in the context of international law. For a tribunal such as this one to be established according to the rule of law, it must be established in accordance with the proper international standards; it must provide all the guarantees of fairness, justice and even-handedness, in full conformity with internationally recognized human rights instruments.[...]
  • 46. An examination of the Statute of the International Tribunal, and of the Rules of Procedure and Evidence adopted pursuant to that Statute leads to the conclusion that it has been established in accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant on Civil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence. For example, Article 13, paragraph 1, of the Statute ensures the high moral character, impartiality, integrity and competence of the Judges of the International Tribunal, while various other provisions in the Rules ensure equality of arms and fair trial.
  • 47. In conclusion, the Appeals Chamber finds that the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial. It is thus ‘established by law.’
  • 48. The first ground of Appeal: unlawful establishment of the International Tribunal, is accordingly dismissed.

IV. Commentary

From a legal-political point of view, and in the absence (by then) of an International Criminal Court, most scholars would agree with the idea that international crimes, such as war crimes and crimes against humanity, should be dealt with by an international judicial body. The war in former Yugoslavia once more pointed to the humanitarian consequences related to such crimes. The same holds true for the other situations in which the Security Council—again in the absence of the International Criminal Court—decided to establish an international tribunal, such as the International Criminal Tribunal for Rwanda (ICTR).[6]

However, in convincing people that international organizations, once created by states, are not the Frankenstein’s monsters that go their own way and develop themselves independently from their creators, the present case is not particularly helpful. While in this case the public opinion may very well have been that there was a need to prosecute the war criminals of the various conflicts in the former Yugoslavia, legal scholars certainly raised their eyebrows when the Appeals Chamber of the ICTY reached its decision. This commentary focuses on (1) the power of the Security Council to create subsidiary organs and (2) the jurisdiction of the Tribunal to review the legality of the Security Council’s resolution.

Subsidiary organs. The main legal question is: What are limits to the power of an organ of an international organization to establish subsidiary organs? Two principles seem at stake here: first of all, organs cannot simply extend their own functions without a legal basis; secondly, it would be difficult to accept that an organ can delegate functions to a subsidiary organ when it does not have these functions in the first place.[7] The application of at least the second principle would block the Security Council to establish international tribunals.

The Appeals Chamber seems to have solved this by arguing that the Security Council has, on the basis of arts. 39 juncto 41 UN Charter, an implied power to establish an international criminal tribunal since it is a measure necessary for the performance of the main function of the Security Council: the maintenance of peace and security. Indeed, on the basis of art. 39 of the UN Charter the Security Council has a wide mandate to decide on the existence of a breach of the peace, a threat to the peace, or an act of aggression. Article 41, furthermore, provides that ‘[t]he Security Council may decide what measures not involving the use of armed force are to be employed to give effect to its decisions, and it may call upon the members of the United Nations to apply such measures’. And, indeed, while art. 41 does not explicitly mention the establishment of a tribunal as one of the measures, it does not exclude it either. However, also according to the Appeals Chamber, the crucial aspect seems to be that the International Tribunal effectively contributes to the exercise of the Council’s powers to act to maintain or to restore international peace. Not without reason, it has been argued that—while perhaps sound in legal terms—this argumentation is flawed from a more practical or empirical perspective. The ‘jump’ from the ‘maintenance of peace and security’ to setting up a judicial body dealing with international crimes may be too big, and may therefore put the validity of the act—when the contribution of the Tribunal to its main purpose is not convincing—into question.[8]

In the legal context of the establishment of subsidiary organs and delegation of powers, the creation of a judicial organ by a political organ of an international organization seems to be a special, exceptional case.[9] First, the creation of the subsidiary organ is necessary because the principal organ does not possess a judicial function. And, second, the principal organ has to respect the independent position of the subsidiary organ regarding the exercise of its functions and has to accept its decisions. Against this background, the discussion by the Appeals Chamber of the question whether the tribunal is ‘established by law’—as provided for by the main human rights conventions—is of interest. While going in depth in making their point, and focusing on the question of whether the establishment of the Tribunal was in conformity with the rule of law, the Appeals Chamber surprisingly ends up—in para. 46—with a predominantly formalistic analysis in concluding that the International Tribunal has been established in accordance with the appropriate procedures under the United Nations Charter and provides all the necessary safeguards of a fair trial.

Because of the special position of the International Tribunal, the decision of the Appeals Chamber is less helpful in answering the more general question concerning the limits of the power of the Security Council (or other organs) to establish subsidiary organs and delegate powers to them. Which other parts of the Council’s main task—the maintenance of peace and security—can be delegated to such organs? Obviously we have seen other examples of the Security Council using subsidiary bodies to deal with tasks it cannot perform itself (e.g. military missions)[10] [11] [12] [13] or which largely deal with the implementation of earlier decisions (e.g. the Sanctions Committee). At the same time it has been held that ‘improper delegation’ would occur when the Council, for example, would ‘“delegate” its role in the admission, suspension, or expulsion of members’, or ‘delegate to a sanctions committee of the Secretary-General the ultimate determination of whether a “threat to the peace” exists’.11

Jurisdiction. As mentioned before, the argumentation of the Trial and Appeals Chambers differs principally. The Trial Chamber decided that Chapter VII decisions of the Security Council are simply ‘not reviewableV2 and it is not up to the Tribunal to ‘judge the reasonableness of the acts of the Security Council’/3 The Appeals Chamber does, by contrast, take the Kompetenz-Kompetenz principle as the starting point, and argues that international tribunals are allowed to deal with challenges to their own constitution on the basis of a broad concept of jurisdiction.

In international law, every tribunal is a self-contained system (unless otherwise provided). This is incompatible with a narrow concept of jurisdiction, which presupposes a certain division of labour. Of course, the constitutive instrument of an international tribunal can limit some of its jurisdictional powers, but only to the extent to which such limitation does not jeopardize its ‘judicial character’, [...] Such limitations cannot, however, be presumed and, in any case, they cannot be deduced from the concept of jurisdiction itself/4

However, it is one thing to come up with a broad—and inherent—concept of one’s own competence, it is another thing to claim the competence to decide over one’s own existence. Indeed, the Frankenstein’s monster image does present itself quite clearly in this type of ‘haughtiness’, and the assertion that one can decide on its own fate is certainly part of the unease of some scholars with the decision of the Appeals Chamber. Where the Trial Chamber was much more reluctant to go there, the Appeals judges really took the time to scrutinize a Chapter VII decision of the UN Security Council. From a political point of view the Appeals Chamber’s claim may be comprehensible, legally it is certainly not because only a decision confirming the validity of the Security Council’s establishment act could have legal effect. For that reason, it would have been much more adequate if the Security Council would have asked the International Court of Justice for an advisory opinion on the lawfulness of its resolution 827(1993).[14] [15] [16] [17]

Related to this point is the question what would happen if the Security Council would suddenly terminate prosecutions or even end the mandate of the Tribunal. If only for practical purposes, the autonomy of the Tribunal vis-a-vis the Council is not unrestricted. While the judges see it as ‘logical’ that ‘if the Organization can undertake measures which have to be implemented through the intermediary of its Members, it can a fortiori undertake measures which it can implement directly via its organs’/6 the Members (and their citizens) may not necessarily agree with that logic. For instance, the point made by Tadic that UN members have the sovereign right to prosecute persons for having committed international crimes in their own courts was largely left on the table by the Appeal Chamber/7

Overall, the importance of the Tadic case seems to lie in the fact that it relates to an ongoing debate on the tensions within the Charter and between the UN organs. The judgment only implicitly deals with ‘the elephant in the room’: the tension between the different Purposes and Principles of the Charter, which deal with sovereign equality, respect for human rights, enforcement, and peace and security at the same time. The UN system is imperfect and a combination of diverging preferences. This is why to some the somewhat pragmatic establishment of the ICTY was a gift in human rights terms, whereas others would underline the possible ultra vires act of the Security Council as a result of an overstretch of its own powers. Despite the fact that no one expected the Appeals Chamber to conclude that as of the next day it would end its activities because it suddenly realized its invalid creation, the case has become a classic in the debates on the inherent powers of organs of international organizations/8

  • [1] See R. Zacklin, ‘The Role of the International Lawyers in an International Organisation’, inC. Wickremasinghe (ed.), The International Lawyer as Practitioner (London, British Institute forInternational and Comparative Law 2000), pp. 57-68 at p. 67.
  • [2] The fact that, for this book, we limit ourselves to the question of the validity of the establishment ofthe Tribunal does not mean that the case has no substantive relevance. See for instance C. Greenwood,‘International Humanitarian Law and the Tadic Case’, (1996) European Journal of International Law265-83.
  • [3] See Security Council Resolution 827, 25 May 1993. By this resolution the Security Council alsoadopted the Statute of the International Tribunal.
  • [4] See for the various indictments as well as the judgments: http://www.icty.org/case/Tadic/4.
  • [5] Tadic case, Decision on the Defence Motion on the Jurisdiction of the Tribunal, Case No. IT-94-1-T,10 August 1995, para. 40.
  • [6] The establishment of the ICTR was also challenged before the Tribunal itself. See Prosecutor vKanyabashi, Decision on the Defence Motion on Jurisdiction, ICTR-96-15-T, 18 June 1997. See for acommentary, A. Klip and G. Sluiter (eds), Annotated Leading Cases on International Criminal Tribunals,The International Criminal Tribunal for Rwanda, Vol. 2 (Antwerp and Oxford Intersentia 2001), p. 23.
  • [7] See more extensively, D. Sarooshi, ‘The Legal Framework Governing United Nations SubsidiaryOrgans’, (1996) 67 British Yearbook of International Law 413, 428-31.
  • [8] See for instance J. Klabbers, An Introduction of International Organizations Law (3rd edn,Cambridge, Cambridge University Press 2015), p. 222; N. White, The Law of International Organisations(2nd edn, Manchester, Manchester University Press 2005), pp. 82-3.
  • [9] See also the Effect of Awards case, with regard to the establishment by the General Assembly of theUnited Nations Administrative Tribunal, discussed in Part 2 of this volume.
  • [10] See N.M. Blokker, ‘Is Authorization Authorized? Powers and Practice of the UN Security Councilto Authorize the Use of Force by “Coalitions of the Able and Willing”’, (2000) European Journal ofInternational Law 541-68.
  • [11] J.E. Alvarez, ‘Nuremberg Revisited: The Tadic Case’, (1996) European Journal of International Law245-64, at 254.
  • [12] Prosecutor v Tadic, Case No. IT-94-1-T, 10 August 1995, para. 6. ” Ibid., para. 16.
  • [13] 14 Prosecutor v Tadic, Case No. IT-94-1-AR72, para. 11; see also paras. 12, 14, and 18.
  • [14] Compare in this sense the approach of the ICJ in the Lockerbie case, also analysed in Part 3 of thisVolume.
  • [15] Paragraph 36.
  • [16] Yet, see the separate opinion by Judge Sidhwa, addressing this point in paras 81-94 (http://www.icty.org/x/cases/tadic/acdec/en/510027234562.htm).
  • [17] Tadic is not the only case in which the legality of the ICTY—or the ICTR for that matter—was challenged. Both Milosovich and Karadic filed motions claiming the invalidity of the Tribunal on severalgrounds. See M. Swart, ‘Tadic Revisited: Some Critical Comments on the Legacy and Legitimacy of theICTY’, (2011) 3 Goettingen Journal of International Law 985-1009.
 
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