ICTY, Trial Chamber, Decision on the Defense Motion on Jurisdiction - Essay Example

? The Tadic Case February 29, Introduction In April 1994, the UN passed the International Criminal Tribunal for the Former Yugoslavia (ICTY Act). The Act enables and sets out procedures for transfers of accused persons, the deferral of proceedings, and various other kinds of judicial assistance including the acquisition as well as transfer of evidence and the execution of imprisonment sentences on behalf of the Tribunals. The Act gives the authority to take legal action against people responsible for murder, enslavement, extermination, incarceration, rape, torture, deportation , maltreatments on racial, religious reasons as well as other atrocious actions when carried out during armed conflict which are internal or international in nature and when directed against innocent citizens. Nonetheless, ICTY has brought about various issues regarding the legality of institution of the international tribunal and its authority. ICTY statutes give concurrent jurisdiction to the national courts as well as the international tribunals1. ICTY, Trial Chamber, Decision on the Defense Motion on Jurisdiction In the case of Prosecutor v. Dusko Tadic, the defense challenged the primacy of the ICTY because there was no basis in international law to give primacy to the ICTY and it generated an infringement upon state sovereignty. The appellant used three reasons to attack the tribunal: unlawful establishment of Tribunal, its illegal dominance over state courts and its lack of jurisdiction2. Tadic argued that the Tribunal was not lawfully established; those who drafted the UN Charter did not envision such a tribunal, the General Assembly did not take part in its creation, the Council did not act in relation to individuals, and there was no threat to peace. According to Tadic, the Tribunal would not promote peace and a political body could not create a judicial organ. Tadic argued that in establishing such a Tribunal in accordance with the rule of law, the council should have the appropriate worldwide standards; it has to offer the assurances of justice, fairness, as well as evenhandedness in total compliance with international renowned human rights implements3. This led judges to dissent arguing that the ICTY did not have any competence to decide on the issue. ICTY, Appeals Chamber, Decision on the Defense Motion for Interlocutory Appeal After an appeal on the sentencing, the appeal chamber decided that the Tribunal had the authority to articulate the statement that challenged the legitimacy of institution of the Tribunal; it had jurisdiction to determine whether the ICTY was lawfully established (la competence de la competence). The judges also dismissed the challenge to International Tribunal dominance over state-run courts and decided that the Tribunal had jurisdiction of subject matter in the state. In defense to the legality of institution of the Tribunal, the trial chambers decided that there were evidently adequate jurisdiction issues that were open for the Tribunal to determine the issues of place, nature of the offence and the time committed. The chambers decided that the legitimacy of establishing the Tribunal was not a matter of jurisdiction; it was a matter of the lawfulness of its creation. The defense did not have any right to raise the matter of Internal Tribunal primacy over national courts since only a sovereign state that should raise issues related to sovereignty and a person should not put itself in the position of a state in order to challenge the jurisdiction of an international tribunal4. The state is the only one that has the exclusive right to plead violation of the state sovereignty5. Only a self-governing state can raise the appeal or not claim it; the accused did not have any rights to take over the state’s rights in this case6.The most affected states in this case were the Germany where the accused lived and Bosnia-Herzegovina where the crimes were committed; the two states accepted the International Tribunal jurisdiction. The defense claims on the tribunal jurisdiction clearly constituted a controversy to the intent of the two states. When it came to the Bosnian Serb Republic, the international law principle was clear that without recognition by the international community, it would not claim the violation of sovereignty as not having the full rights a state may enjoy7. In this sense, the accused as an individual did not have any locus standing and allowing him to do so would have been to allow him to choose the forum he liked, which was contrary to the coercive criminal jurisdiction principles8. The ICTY establishment by the UN Security Council in accordance with Chapter 7 of UN Charter binds States under the Charter -Article 25. This kind of regulation supersedes any state sovereign right. The creation of the ICTY to try persons responsible for committing crimes is not an invasion of the state sovereignty in criminal jurisdiction, because the crimes are not within the exclusive jurisdiction of any State9. The appeal chamber decided that the institution of ICTY was within the SC’s authority under Article 41 of the Charter and thus, a law established the ICTY. Conclusion Evidently, if the UN council did not create the International Tribunal in a lawful manner, it would not have had the legal authority to come to a decision in space or time over every subject matter or person. The appeal rooted in the lack of validity of the Tribunal went to the very fundamental nature of jurisdiction as the authority to put jurisdiction functions in any sphere into effect. The appeal chamber decided that the International Tribunal had the authority to articulate the plea that challenged the legitimacy of UN council institution of the International Tribunal. Bibliography ICTY, Address of Judge Fausto Pocar, President of the International Criminal Tribunal for the Former Yugoslavia, to the United Nations General Assembly, Press Release, (13 October 2008) available at http://www.icty.org/sid/9989 (last visited February 29, 2012). Klip, A & Sluite, G., Annotated Leading cases of international criminal tribunals. Volume 7 (Intersentia, Antwerp, 1999) Lauterpacht, E., The Legal Effects of Illegal Acts of International Organizations in Cambridge Essays in International Law: Essays in Honor of Lord McNair (Stevens, London, 1965) 88-112 Louise, A., Crimes against Women under International Law (2003) 21 Berkeley Journal of International Law. Gowlland, V & Tehindrazanarivelo, D., National implementation of United Nations sanctions: a comparative study, (Martinus Nijhoff Publishers, 2004) McGoldrick, D., Rowe, P & Donnely, E., The permanent international criminal court: legal and policy issues, (Oregon, Hart Publishing 2004) Miraglia, M., Admissibility of Evidence, Standard of Proof, and Nature of the Decision in the ICC Confirmation of Charges in Lubanga,’ Journal of International Criminal Justice, vol.6, 2007, 489-503 Schabas, W. A. The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda and Sierra Leone, (Cambridge University Press, 2006) Schrag, M, ‘The Yugoslav War Crimes Tribunal: An Interim Assessment’, 7 Transnational Law & Contemporary Problems (1997) 15, 19. Simma, B, Commentary on the United Nations Charter, 2nd Ed. (OUP, Oxford, 2002) Stahn, C., & Sluiter, G., The emerging practice of the International Criminal Court (Martinus Nijhoff Publishers 2009) Stover, E. The Witnesses: War Crimes and the Promise of Justice in the Hague (2007), 145. Sunga, L.S. The Emerging System of International Criminal Law (The Hague: Kluwer Law International, 1997) Swart, B, Zahar, A & Sluiter, G, The Legacy of the International Criminal Tribunal for the Former Yugoslavia, (Oxford, OUP 2011) Tochilovsky, V. ‘International Criminal Justice: “Strangers in the Foreign System,” Criminal Law Forum. vol. 15, 2004, 319-344 Read More