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The International Criminal Tribunal for Yugoslavia: The Decision of the Appeals Chamber on the Interlocutory Appeal on Jurisdiction in the Tadic Case

Published online by Cambridge University Press:  17 January 2008

Colin Warbrick  and
Peter Rowe
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Extract

Dusko Tadić is a Bosnian Serb. He is the first defendant of whom the International Criminal Tribunal for Yugoslavia (the “Tribunal”) obtained custody, following his transfer to the Tribunal at its request from Germany. Tadić had been arrested there and investigations had begun into his involvement in offences in Yugoslavia. These enquiries were discontinued at the request of the Tribunal.1

Type
Shorter Articles, Comments and Notes
Information
International & Comparative Law Quarterly , Volume 45 , Issue 3 , July 1996 , pp. 691 - 701
Copyright
Copyright © British Institute of International and Comparative Law 1996

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References

1. In the matter of a proposal for a formal request for deferral to the competence of the International Tribunal in the matter of Duško Tadić Case No.IT–94–1–D. 8 Nov. 1994; see further L. Vierucci, “The First Steps of the International Criminal Tribunal for the Former Yugoslavia” (1995) 6 E.J.I.L. 134, 136–143.

2. The Prosecutor of the Tribunal v. Dusan Tadić a/k/a “Dule” and Goran Borovnica. 13 Feb. 1995; see now Idem. Amended Indictment No.3,14 Dec. 1995.

3. Brief to support the defence motion on the jurisdiction of the Tribunal. 23 June 1995.

4. Case No.IT–94–1–AR 72. Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction. 2 Oct. 1995. Appeals Chamber. The text is available in (1996) 35 I.L.M. 32.

5. S.C. Res.827 (1993), 25 May 1993, on which see J. C. O'Brien, “The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia” (1993) 87 A.J.I.L. 639, 639–644; D. Shraga and R. Zacklin. “The International Criminal Tribunal for the Former Yugoslavia” (1994) 5 E.J.I.L. 360, 360–362.

6. Also, amicus curiae brief presented by the US government in the Tadić case, 25 July 1995, pp.1–4.Google Scholar

7. Case No.IT–94–1–T. Decision on the Defence Motion on Jurisdiction. 10 Aug. 1995. paras.1–17.

8. Idem. para. 16.

9. Para, references in the text are to the Appeals Chamber's decision, supra n.4.

10. Supra n.4. dissenting opinion, pp. 1–2.Google Scholar

11. For forthright arguments in favour of a power of judicial review by the ICJ of Security Council decisions, see e.g. B. Graefrath. “Leave to the Court what Belongs to the Court. The Libyan Case” (1992) 4 E.J.I.L. 184 and G. Watson, “Constitutionalism, Judicial Review, and the World Court” (1993) 34 Harv.I.L.J. 1: more cautiously, C. Tomuschat, “The Lockerbie case before the International Court of Justice” (1992) 48 Rev.Int.Comm.Jur. 38 and J. Alvarez. “Judging the Security Council” (1996) 90 A.J.I.L. 1.

12. Questions of Interpretation and Application of the 1971 Montreal Convention Arising from the Aerial Incident at Lockerbie (Libya v. US) I.C.J. Rep. 1992, 114 (provisional measures order of 14 Apr.).

13. For support for the Appeals Chamber's position, see G. Aldrich, “Jurisdiction of the International Criminal Court for the Former Yugoslavia” (1996) 90 A.J.I.L. 64, 64–65.

14. In any event, the applicant had decided not to proceed with this question before the Appeals Chamber (para.30).

15. S.C. Res. 827. para.2 and Report of the Secretary-General pursuant topara.2 of Security Council Resolution 808(1993). UN Doc.S/25704. para.29; and see text accompanying infra n.29.

16. Case No.IT–94–1–T. Decision on the Prosecutor's Motion requesting protective measures for victims and witnesses. paras.27–28. The circumstances in which the Tribunal is now operating have been changed by the agreements included in the Dayton Accords: see UN Doc.S/1994/999. text in (1996) 35 I.L.M. 75.

17. Supra n.7, at para.41.

18. Bosnia and Herzegovina and Germany are among the States which have enacted implementing legislation for co-operation with the Tribunal: see Report of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law committed in the Territory of the Former Yugoslavia since 1991. A/50/365. para.132.

19. Report of the Secretary-General, supra n.15, at para.34.

20. President Cassese relied upon the following Arts, to support his conclusion: common Art.3 of the Geneva Conventions 1949; Art.5. Geneva Convention I (and corresponding Arts, in the other 1949 Conventions): Art.6(2), Geneva Convention IV: Art.3(b). Additional Protocol I: Art.4(1) and (2). Additional Protocol II.

21. See Art. 1(1). Additional Protocol II. although common Art.3 of the Geneva Conventions 1949 will apply in this situation. See also A. Cassese. “The Status of Rebels under the 1977 Geneva Protocol on Non-International Armed Conflicts” (1981) 30 I.C.L.Q. 416, 429.

22. Cf. the view of Judge Li. discussed infra, who dissented on this issue. He decided that the conflict was of an international character. See also Case No.IT–94–2–R61, Decision of Trial Chamber I, Dragon Nikolic 20 Oct. 1995. p.17. The ICRC. which had negotiated special agreements as envisaged by common Art.3 in 1992. must have believed the conflict to have been non-international.

23. Note, however, the view of Judge Abi-Saab that a “strong case can be made for the application of Article 2, even when the incriminated act takes place in an internal conflict” (p.5 of his judgment). He preferred to base this view upon “a teleological interpretation of the [Geneva] Conventions in the light of their object and purpose”. The Trial Chamber in Tadić had accepted the applicability of the grave breach provisions in Art.2 of the Statute to non-international armed conflicts, arguing that common Art.2 of the 1949 Conventions was not imported into Art.2 of the Statute.

24. In Public Prosecutor v. Koi [1968] 1 All E.R. 419, 426, Lord Hodson, speaking for the Board, concluded that “the [Geneva] Convention [III] does not extend the protection given to prisoners of war to nationals of the detaining power [and] that the same principle must apply as regards persons who, though not nationals of, owe a duty of allegiance to. the detaining power”.

25. Arts.13, 13 and 4 respectively of the 1949 Conventions. A “Party to the conflict” clearly relates to a State. Public Prosecutor v. Kassem (1971) 42 I.L.R. 470.

26. The term “civilian” refers to one who is not a member of the armed forces but in the context of a non-international armed conflict it must be understood as referring to a person taking no active part in the hostilities (see common Art.3 of the 1949 Geneva Conventions).

27. This argument convinced President Cassese that the armed conflict in Bosnia could not be treated as international: supra n.4. at para.76.

28. Note also that Art.4 of the Statute of the Rwanda Tribunal provides for jurisdiction over “Violations of Article 3 common to the Geneva Conventions and of Additional Protocol II”.

29. Supra n.4, dissenting judgment, para. 13.

30. According to President Cassese this includes treaty law binding upon the parties to the conflict (sic) and customary international law: paras.89 and 127 of the decision, supra n.4.

31. The grave breaches provisions contained in Art.2 of the Statute are confined to the 1949 Geneva Conventions. They do not form part of the jurisdiction of the Rwanda Tribunal.

32. See Art.6 of Additional Protocol II. The advantage of Art.1(4) of Additional Protocol I is that those fighting in an armed conflict on behalf of a people in their exercise of the right of self-determination would have the same rights and obligations as those fighting on behalf of a State.

33. Both groups may also be liable for breaches of their own disciplinary codes (assuming that the rebels have such a code).

34. G. I. A. Draper drew attention to the fact that neither the French government with respect to the conflict in Algeria nor the British government with respect to those in Kenya. Malaya and Cyprus recognised that common Art.3 of the Geneva Conventions 1949 should be invoked: The Red Cross Conventions (1958). p.15. n.47.

35. Under the law of the UK, liability for a grave breach of the Geneva Conventions 1949 may exist only in respect of an international armed conflict: s.1(4). Geneva Conventions Act 1957 and s.1(5), Geneva Conventions (Amendment) Act 1995.

36. Art.51(1) of Additional Protocol I refers to the civilian population and to individual civilians. See generally Schwelb. “Crimes Against Humanity” (1946) 23 B.Y.I.L. 179.

37. O'Brien, op. cit. supra n.5, at p.648. See also Case No.IT–94–2–R61. supra n.22, at p. 14; P. Rowe, “War Crimes and the Former Yugoslavia: The Legal Difficulties” (1993) 32 Rev. Dr. Militaire et de Droit de la Guerre 319, 336. Amnesty International Report 1993 concluded that “it was open to question whether rape had been specifically selected by military leaders as a weapon of war”, but see now Case No.IT–94–2–R61, idem, pp.19–20. Note also the use of the word “deportation” in Art.5 which would suggest the removal of a person to another country and not merely within the territory of the same State.

38. For the view of the British government that the use of chemical weapons by Iraq against civilians at Halabja was contrary to international humanitarian law see (1988) 59 B.Y.I.L. 579 (relied upon by President Cassese at para. 121).