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The Tadic Case - Essay Example

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The Tadic Case Course February 29, 2012 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…
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The Tadic Case
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Download file to see previous pages 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 Tri ...Download file to see next pagesRead More
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