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15.04.14 10:31 Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction Seite 1 von 55 http://www.icty.org/x/cases/tadic/acdec/en/51002.htm Before: Judge Cassese, Presiding Judge Li Judge Deschênes Judge Abi-Saab Judge Sidhwa Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh Decision of: 2 octobre 1995 PROSECUTOR v. DUSKO TADIC a/k/a "DULE" _______________________________ DECISION ON THE DEFENCE MOTION FOR INTERLOCUTORY APPEAL ON JURISDICTION _______________________________ The Office of the Prosecutor: Mr. Richard Goldstone, Prosecutor Mr. Grant Niemann Mr. Alan Tieger Mr. Michael Keegan Ms. Brenda Hollis Counsel for the Accused: Mr. Michail Wladimiroff Mr. Alphons Orie Mr. Milan Vujin Mr. Krstan Simic I. INTRODUCTION A. The Judgement Under Appeal 1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (hereinafter "International Tribunal") is seized of an appeal lodged by Appellant the Defence against a judgement rendered by the Trial Chamber II on 10 August 1995. By that judgement, Appellant's motion challenging the jurisdiction of the International Tribunal was denied. 2. Before the Trial Chamber, Appellant had launched a three-pronged attack:

Before: Judge Cassese, Presiding Judge Li Judge … · Before: Judge Cassese, Presiding Judge Li Judge Deschênes ... Decision of: 2 octobre 1995 PROSECUTOR v. DUSKO TADIC a/k/a "DULE"

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Page 1: Before: Judge Cassese, Presiding Judge Li Judge … · Before: Judge Cassese, Presiding Judge Li Judge Deschênes ... Decision of: 2 octobre 1995 PROSECUTOR v. DUSKO TADIC a/k/a "DULE"

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Before:Judge Cassese, PresidingJudge LiJudge DeschênesJudge Abi-Saab Judge Sidhwa

Registrar:Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 2 octobre 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_______________________________

DECISION ON THE DEFENCE MOTION FOR INTERLOCUTORY APPEAL ON JURISDICTION

_______________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant NiemannMr. Alan Tieger Mr. Michael KeeganMs. Brenda Hollis

Counsel for the Accused:

Mr. Michail Wladimiroff Mr. Alphons OrieMr. Milan Vujin Mr. Krstan Simic

I. INTRODUCTION

A. The Judgement Under Appeal

1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible forSerious Violations of International Humanitarian Law Committed in the Territory of Former Yugoslaviasince 1991 (hereinafter "International Tribunal") is seized of an appeal lodged by Appellant the Defenceagainst a judgement rendered by the Trial Chamber II on 10 August 1995. By that judgement, Appellant'smotion challenging the jurisdiction of the International Tribunal was denied.

2. Before the Trial Chamber, Appellant had launched a three-pronged attack:

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a) illegal foundation of the International Tribunal;b) wrongful primacy of the International Tribunal over national courts;c) lack of jurisdiction ratione materiae.

The judgement under appeal denied the relief sought by Appellant; in its essential provisions, it reads asfollows:

"THE TRIAL CHAMBER [. . . ]HEREBY DISMISSES the motion insofar as it relates to primacyjurisdiction and subject-matter jurisdiction under Articles 2, 3 and 5 and otherwise decides it to beincompetent insofar as it challenges the establishment of the International TribunalHEREBY DENIES the relief sought by the Defence in its Motion on the Jurisdiction of theTribunal." (Decision on the Defence Motion on Jurisdiction in the Trial Chamber of theInternational Tribunal, 10 August 1995 (Case No. IT-94-1-T), at 33 (hereinafter Decision at Trial).)

Appellant now alleges error of law on the part of the Trial Chamber.

3. As can readily be seen from the operative part of the judgement, the Trial Chamber took a differentapproach to the first ground of contestation, on which it refused to rule, from the route it followed withrespect to the last two grounds, which it dismissed. This distinction ought to be observed and will bereferred to below. From the development of the proceedings, however, it now appears that the question of jurisdiction hasacquired, before this Chamber, a two-tier dimension:

a) the jurisdiction of the Appeals Chamber to hear this appeal;b) the jurisdiction of the International Tribunal to hear this case on the merits.

Before anything more is said on the merits, consideration must be given to the preliminary question:whether the Appeals Chamber is endowed with the jurisdiction to hear this appeal at all.

B. Jurisdiction Of The Appeals Chamber

4. Article 25 of the Statute of the International Tribunal (Statute of the International Tribunal (originallypublished as annex to the Report of the Secretary-General pursuant to paragraph 2 of Security Councilresolution 808 (1993) (U.N. Doc. S/25704) and adopted pursuant to Security Council resolution 827 (25May 1993) (hereinafter Statute of the International Tribunal)) adopted by the United Nations SecurityCouncil opens up the possibility of appellate proceedings within the International Tribunal. This provisionstands in conformity with the International Covenant on Civil and Political Rights which insists upon aright of appeal (International Covenant on Civil and Political Rights, 19 December 1966, art. 14, para. 5,G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966) (hereinafterICCPR)).

As the Prosecutor of the International Tribunal has acknowledged at the hearing of 7 and 8 September1995, the Statute is general in nature and the Security Council surely expected that it would besupplemented, where advisable, by the rules which the Judges were mandated to adopt, especially for"Trials and Appeals" (Art.15). The Judges did indeed adopt such rules: Part Seven of the Rules ofProcedure and Evidence (Rules of Procedure and Evidence, 107-08 (adopted on 11 February 1994pursuant to Article 15 of the Statute of the International Tribunal, as amended (IT/32/Rev. 5))(hereinafterRules of Procedure)).

5. However, Rule 73 had already provided for "Preliminary Motions by Accused", including fiveheadings. The first one is: "objections based on lack of jurisdiction." Rule 72 (B) then provides:

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"The Trial Chamber shall dispose of preliminary motions in limine litis and without interlocutoryappeal, save in the case of dismissal of an objection based on lack of jurisdiction." (Rules ofProcedure, Rule 72 (B).)

This is easily understandable and the Prosecutor put it clearly in his argument:

"I would submit, firstly, that clearly within the four corners of the Statute the Judges must be free tocomment, to supplement, to make rules not inconsistent and, to the extent I mentioned yesterday, itwould also entitle the Judges to question the Statute and to assure themselves that they can dojustice in the international context operating under the Statute. There is no question about that.

Rule 72 goes no further, in my submission, than providing a useful vehicle for achieving - really itis a provision which achieves justice because but for it, one could go through, as Mr. Oriementioned in a different context, admittedly, yesterday, one could have the unfortunate position ofhaving months of trial, of the Tribunal hearing witnesses only to find out at the appeal stage that, infact, there should not have been a trial at all because of some lack of jurisdiction for whateverreason.

So it is really a rule of fairness for both sides in a way, but particularly in favour of the accused inorder that somebody should not be put to the terrible inconvenience of having to sit through a trialwhich should not take place. So, it is really like many of the rules that Your Honours and yourcolleagues made with regard to rules of evidence and procedure. It is to an extent supplementing theStatute, but that is what was intended when the Security Council gave to the Judges the power tomake rules. They did it knowing that there were spaces in the Statute that would need to be filled byhaving rules of procedure and evidence.

[. . .]

So, it is really a rule of convenience and, if I may say so, a sensible rule in the interests of justice, inthe interests of both sides and in the interests of the Tribunal as a whole." (Transcript of the Hearingof the Interlocutory Appeal on Jurisdiction, 8 September 1995, at 4 (hereinafter AppealTranscript).)

The question has, however, been put whether the three grounds relied upon by Appellant really go to thejurisdiction of the International Tribunal, in which case only, could they form the basis of an interlocutoryappeal. More specifically, can the legality of the foundation of the International Tribunal and its primacybe used as the building bricks of such an appeal?

In his Brief in appeal, at page 2, the Prosecutor has argued in support of a negative answer, based on thedistinction between the validity of the creation of the International Tribunal and its jurisdiction. Thesecond aspect alone would be appealable whilst the legality and primacy of the International Tribunalcould not be challenged in appeal. (Response to the Motion of the Defence on the Jurisdiction of theTribunal before the Trial Chamber of the International Tribunal, 7 July 1995 (Case No. IT-94-1-T), at 4(hereinafter Prosecutor Trial Brief).)

6. This narrow interpretation of the concept of jurisdiction, which has been advocated by the Prosecutorand one amicus curiae, falls foul of a modern vision of the administration of justice. Such a fundamentalmatter as the jurisdiction of the International Tribunal should not be kept for decision at the end of apotentially lengthy, emotional and expensive trial. All the grounds of contestation relied upon byAppellant result, in final analysis, in an assessment of the legal capability of the International Tribunal totry his case. What is this, if not in the end a question of jurisdiction? And what body is legally authorized

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to pass on that issue, if not the Appeals Chamber of the International Tribunal? Indeed - this is by nomeans conclusive, but interesting nevertheless: were not those questions to be dealt with in limine litis,they could obviously be raised on an appeal on the merits. Would the higher interest of justice be servedby a decision in favour of the accused, after the latter had undergone what would then have to be brandedas an unwarranted trial. After all, in a court of law, common sense ought to be honoured not only whenfacts are weighed, but equally when laws are surveyed and the proper rule is selected. In the present case,the jurisdiction of this Chamber to hear and dispose of Appellant's interlocutory appeal is indisputable.

C. Grounds Of Appeal

7. The Appeals Chamber has accordingly heard the parties on all points raised in the written pleadings. Ithas also read the amicus curiae briefs submitted by Juristes sans Frontières and the Government of theUnited States of America, to whom it expresses its gratitude.

8. Appellant has submitted two successive Briefs in appeal. The second Brief was late but, in the absenceof any objection by the Prosecutor, the Appeals Chamber granted the extension of time requested byAppellant under Rule 116. The second Brief tends essentially to bolster the arguments developed by Appellant in his original Brief.They are offered under the following headings:

a) unlawful establishment of the International Tribunal;b) unjustified primacy of the International Tribunal over competent domestic courts;c) lack of subject-matter jurisdiction.

The Appeals Chamber proposes to examine each of the grounds of appeal in the order in which they areraised by Appellant.

II. UNLAWFUL ESTABLISHMENT OF THE INTERNATIONAL TRIBUNAL

9. The first ground of appeal attacks the validity of the establishment of the International Tribunal.

A. Meaning Of Jurisdiction

10. In discussing the Defence plea to the jurisdiction of the International Tribunal on grounds of invalidityof its establishment by the Security Council, the Trial Chamber declared:

"There are clearly enough matters of jurisdiction which are open to determination by theInternational Tribunal, questions of time, place and nature of an offence charged. These areproperly described as jurisdictional, whereas the validity of the creation of the InternationalTribunal is not truly a matter of jurisdiction but rather the lawfulness of its creation [. . .]" (Decisionat Trial, at para. 4.)

There is a petitio principii underlying this affirmation and it fails to explain the criteria by which it theTrial Chamber disqualifies the plea of invalidity of the establishment of the International Tribunal as aplea to jurisdiction. What is more important, that proposition implies a narrow concept of jurisdictionreduced to pleas based on the limits of its scope in time and space and as to persons and subject-matter(ratione temporis, loci, personae and materiae). But jurisdiction is not merely an ambit or sphere (betterdescribed in this case as "competence"); it is basically - as is visible from the Latin origin of the worditself, jurisdictio - a legal power, hence necessarily a legitimate power, "to state the law" (dire le droit)within this ambit, in an authoritative and final manner.

This is the meaning which it carries in all legal systems. Thus, historically, in common law, the Termes

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de la ley provide the following definition:

"jurisdiction' is a dignity which a man hath by a power to do justice in causes of complaint madebefore him." (Stroud's Judicial Dictionary, 1379 (5th ed. 1986).)

The same concept is found even in current dictionary definitions:

"[Jurisdiction] is the power of a court to decide a matter in controversy and presupposes theexistence of a duly constituted court with control over the subject matter and the parties." Black'sLaw Dictionary, 712 (6th ed. 1990) (citing Pinner v. Pinner, 33 N.C. App. 204, 234 S.E.2d 633).)

11. A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not ininternational law. International law, because it lacks a centralized structure, does not provide for anintegrated judicial system operating an orderly division of labour among a number of tribunals, wherecertain aspects or components of jurisdiction as a power could be centralized or vested in one of them butnot the others. 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 jurisdictionalpowers, but only to the extent to which such limitation does not jeopardize its "judicial character", as shallbe discussed later on. Such limitations cannot, however, be presumed and, in any case, they cannot bededuced from the concept of jurisdiction itself.

12. In sum, if the International Tribunal were not validly constituted, it would lack the legitimate power todecide in time or space or over any person or subject-matter. The plea based on the invalidity ofconstitution of the International Tribunal goes to the very essence of jurisdiction as a power to exercisethe judicial function within any ambit. It is more radical than, in the sense that it goes beyond andsubsumes, all the other pleas concerning the scope of jurisdiction. This issue is a preliminary to andconditions all other aspects of jurisdiction.

B. Admissibility Of Plea Based On The Invalidity Of The Establishment Of The International Tribunal

13. Before the Trial Chamber, the Prosecutor maintained that:

(1) the International Tribunal lacks authority to review its establishment by the Security Council(Prosecutor Trial Brief, at 10-12); and that in any case(2) the question whether the Security Council in establishing the International Tribunal compliedwith the United Nations Charter raises "political questions" which are "non-justiciable" (id. at 12-14).

The Trial Chamber approved this line of argument. This position comprises two arguments: one relating to the power of the International Tribunal to considersuch a plea; and another relating to the classification of the subject-matter of the plea as a "politicalquestion" and, as such, "non-justiciable", i.e.", regardless of whether or not it falls within its jurisdiction.

1. Does The International Tribunal Have Jurisdiction?

14. In its decision, the Trial Chamber declares:

"[I]t is one thing for the Security Council to have taken every care to ensure that a structureappropriate to the conduct of fair trials has been created; it is an entirely different thing in any wayto infer from that careful structuring that it was intended that the International Tribunal be

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empowered to question the legality of the law which established it. The competence of theInternational Tribunal is precise and narrowly defined; as described in Article 1 of its Statute, it isto prosecute persons responsible for serious violations of international humanitarian law, subject tospatial and temporal limits, and to do so in accordance with the Statute. That is the full extent of thecompetence of the International Tribunal." (Decision at Trial, at para. 8.)

Both the first and the last sentences of this quotation need qualification. The first sentence assumes asubjective stance, considering that jurisdiction can be determined exclusively by reference to or inferencefrom the intention of the Security Council, thus totally ignoring any residual powers which may derivefrom the requirements of the "judicial function" itself. That is also the qualification that needs to be addedto the last sentence.

Indeed, the jurisdiction of the International Tribunal, which is defined in the middle sentence anddescribed in the last sentence as "the full extent of the competence of the International Tribunal", is not, infact, so. It is what is termed in international law "original" or "primary" and sometimes "substantive"jurisdiction. But it does not include the "incidental" or "inherent" jurisdiction which derives automaticallyfrom the exercise of the judicial function.

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

16. In treating a similar case in its advisory opinion on the Effect of Awards of the United NationsAdministrative Tribunal, the International Court of Justice declared:

"[T]he view has been put forward that the Administrative Tribunal is a subsidiary, subordinate, orsecondary organ; and that, accordingly, the Tribunal's judgements cannot bind the GeneralAssembly which established it.

[. . . ]

The question cannot be determined on the basis of the description of the relationship between theGeneral Assembly and the Tribunal, that is, by considering whether the Tribunal is to be regardedas a subsidiary, a subordinate, or a secondary organ, or on the basis of the fact that it wasestablished by the General Assembly. It depends on the intention of the General Assembly inestablishing the Tribunal and on the nature of the functions conferred upon it by its Statute. Anexamination of the language of the Statute of the Administrative Tribunal has shown that theGeneral Assembly intended to establish a judicial body." (Effect of Awards of Compensation Madeby the United Nations Administrative Tribunal, 1954 I.C.J. Reports 47, at 60-1 (Advisory Opinionof 13 July) (hereinafter Effect of Awards).)

17. Earlier, the Court 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 certainattributes. Prominent among these attributes of the judicial function figures the power provided for inArticle 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

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the decision of the Tribunal." (Id. at 51-2, quoting Statute of the United Nations AdministrativeTribunal, art. 2, para. 3.)

18. This power, known as the principle of "Kompetenz-Kompetenz" in German or "la compétence de lacompétence" in French, is part, and indeed a major part, of the incidental or inherent jurisdiction of anyjudicial or arbitral tribunal, consisting of its "jurisdiction to determine its own jurisdiction." It is anecessary component in the exercise of the judicial function and does not need to be expressly providedfor in the constitutive documents of those tribunals, although this is often done (see, e.g., Statute of theInternational 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 isan institution which has been pre-established by an international instrument defining its jurisdictionand regulating its operation." (Nottebohm Case (Liech. v. Guat.), 1953 I.C.J. Reports 7, 119 (21March).)

This is not merely a power in the hands of the tribunal. In international law, where there is no integratedjudicial system and where every judicial or arbitral organ needs a specific constitutive instrument definingits jurisdiction, "the first obligation of the Court - as of any other judicial body - is to ascertain its owncompetence." (Judge Cordova, dissenting opinion, advisory opinion on Judgements of the AdministrativeTribunal of the I.L.O. upon complaints made against the U.N.E.S.C.O., 1956 I.C.J. Reports, 77, 163(Advisory Opinion of 23 October)(Cordova, J., dissenting).)

19. It is true that this power can be limited by an express provision in the arbitration agreement or in theconstitutive instruments of standing tribunals, though the latter possibility is controversial, particularlywhere the limitation risks undermining the judicial character or the independence of the Tribunal. But it isabsolutely clear that such a limitation, to the extent to which it is admissible, cannot be inferred withoutan express provision allowing the waiver or the shrinking of such a well-entrenched principle of generalinternational law. As no such limitative text appears in the Statute of the International Tribunal, the International Tribunalcan and indeed has to exercise its "compétence de la compétence" and examine the jurisdictional plea ofthe Defence, in order to ascertain its jurisdiction to hear the case on the merits.

20. It has been argued by the Prosecutor, and held by the Trial Chamber that:

"[T]his International Tribunal is not a constitutional court set up to scrutinise the actions of organsof the United Nations. It is, on the contrary, a criminal tribunal with clearly defined powers,involving a quite specific and limited criminal jurisdiction. If it is to confine its adjudications tothose specific limits, it will have no authority to investigate the legality of its creation by theSecurity Council." (Decision at Trial, at para. 5; see also paras. 7, 8, 9, 17, 24, passim.)

There is no question, of course, of the International Tribunal acting as a constitutional tribunal, reviewingthe acts of the other organs of the United Nations, particularly those of the Security Council, its own"creator." It was not established for that purpose, as is clear from the definition of the ambit of its"primary" or "substantive" jurisdiction in Articles 1 to 5 of its Statute.

But this is beside the point. The question before the Appeals Chamber is whether the InternationalTribunal, in exercising this "incidental" jurisdiction, can examine the legality of its establishment by theSecurity Council, solely for the purpose of ascertaining its own "primary" jurisdiction over the case beforeit.

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21. The Trial Chamber has sought support for its position in some dicta of the International Court ofJustice or its individual Judges, (see Decision at Trial, at paras. 10 - 13), to the effect that:

"Undoubtedly, the Court does not possess powers of judicial review or appeal in respect ofdecisions taken by the United Nations organs concerned." (Legal Consequences for States of theContinued Presence of South Africa in Namibia (South-West Africa) Notwithstanding SecurityCouncil Resolution 276 (1970), 1971 I.C.J. Reports 16, at para. 89 (Advisory Opinion of 21 June)(hereafter the Namibia Advisory Opinion).)

All these dicta, however, address the hypothesis of the Court exercising such judicial review as a matterof "primary" jurisdiction. They do not address at all the hypothesis of examination of the legality of thedecisions of other organs as a matter of "incidental" jurisdiction, in order to ascertain and be able toexercise its "primary" jurisdiction over the matter before it. Indeed, in the Namibia Advisory Opinion,immediately after the dictum reproduced above and quoted by the Trial Chamber (concerning its"primary" jurisdiction), the International Court of Justice proceeded to exercise the very same "incidental"jurisdiction discussed here:

"[T]he question of the validity or conformity with the Charter of General Assembly resolution 2145(XXI) or of related Security Council resolutions does not form the subject of the request foradvisory opinion. However, in the exercise of its judicial function and since objections have beenadvanced the Court, in the course of its reasoning, will consider these objections before determiningany legal consequences arising from those resolutions." (Id. at para. 89.)

The same sort of examination was undertaken by the International Court of Justice, inter alia, in itsadvisory opinion on the Effect of Awards Case:

"[T]he legal power of the General Assembly to establish a tribunal competent to render judgementsbinding on the United Nations has been challenged. Accordingly, it is necessary to considerwhether the General Assembly has been given this power by the Charter." (Effect of Awards, at56.)

Obviously, the wider the discretion of the Security Council under the Charter of the United Nations, thenarrower the scope for the International Tribunal to review its actions, even as a matter of incidentaljurisdiction. Nevertheless, this does not mean that the power disappears altogether, particularly in caseswhere there might be a manifest contradiction with the Principles and Purposes of the Charter.

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

2. Is The Question At Issue Political And As Such Non-Justiciable?

23. The Trial Chamber accepted this argument and classification. (See Decision at Trial, at para. 24.)

24. The doctrines of "political questions" and "non-justiciable disputes" are remnants of the reservationsof "sovereignty", "national honour", etc. in very old arbitration treaties. They have receded from thehorizon of contemporary international law, except for the occasional invocation of the "political question"argument before the International Court of Justice in advisory proceedings and, very rarely, in contentiousproceedings as well.

The Court has consistently rejected this argument as a bar to examining a case. It considered it unfoundedin law. As long as the case before it or the request for an advisory opinion turns on a legal questioncapable of a legal answer, the Court considers that it is duty-bound to take jurisdiction over it, regardless

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of the political background or the other political facets of the issue. On this question, the InternationalCourt of Justice declared in its advisory opinion on Certain Expenses of the United Nations:

"[I]t has been argued that the question put to the Court is intertwined with political questions, andthat for this reason the Court should refuse to give an opinion. It is true that most interpretations ofthe Charter of the United Nations will have political significance, great or small. In the nature ofthings it could not be otherwise. The Court, however, cannot attribute a political character to arequest which invites it to undertake an essentially judicial task, namely, the interpretation of atreaty provision." (Certain Expenses of the United Nations, 1962 I.C.J. Reports 151, at 155(Advisory Opinion of 20 July).)

This dictum applies almost literally to the present case.

25. The Appeals Chamber does not consider that the International Tribunal is barred from examination ofthe Defence jurisdictional plea by the so-called "political" or "non-justiciable" nature of the issue it raises.

C. The Issue Of Constitutionality

26. Many arguments have been put forward by Appellant in support of the contention that theestablishment of the International Tribunal is invalid under the Charter of the United Nations or that itwas not duly established by law. Many of these arguments were presented orally and in writtensubmissions before the Trial Chamber. Appellant has asked this Chamber to incorporate into the argumentbefore the Appeals Chamber all the points made at trial. (See Appeal Transcript, 7 September 1995, at 7.)Apart from the issues specifically dealt with below, the Appeals Chamber is content to allow thetreatment of these issues by the Trial Chamber to stand.

27. The Trial Chamber summarized the claims of the Appellant as follows:

"It is said that, to be duly established by law, the International Tribunal should have been createdeither by treaty, the consensual act of nations, or by amendment of the Charter of the UnitedNations, not by resolution of the Security Council. Called in aid of this general proposition are anumber of considerations: that before the creation of the International Tribunal in 1993 it was neverenvisaged that such an ad hoc criminal tribunal might be set up; that the General Assembly, whoseparticipation would at least have guaranteed full representation of the international community, wasnot involved in its creation; that it was never intended by the Charter that the Security Councilshould, under Chapter VII, establish a judicial body, let alone a criminal tribunal; that the SecurityCouncil had been inconsistent in creating this Tribunal while not taking a similar step in the case ofother areas of conflict in which violations of international humanitarian law may have occurred;that the establishment of the International Tribunal had neither promoted, nor was capable ofpromoting, international peace, as the current situation in the former Yugoslavia demonstrates; thatthe Security Council could not, in any event, create criminal liability on the part of individuals andthat this is what its creation of the International Tribunal did; that there existed and exists no suchinternational emergency as would justify the action of the Security Council; that no political organsuch as the Security Council is capable of establishing an independent and impartial tribunal; thatthere is an inherent defect in the creation, after the event, of ad hoc tribunals to try particular typesof offences and, finally, that to give the International Tribunal primacy over national courts is, inany event and in itself, inherently wrong." (Decision at Trial, at para. 2.)

These arguments raise a series of constitutional issues which all turn on the limits of the power of theSecurity Council under Chapter VII of the Charter of the United Nations and determining what action ormeasures can be taken under this Chapter, particularly the establishment of an international criminal

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tribunal. Put in the interrogative, they can be formulated as follows:

1. was there really a threat to the peace justifying the invocation of Chapter VII as a legal basis forthe establishment of the International Tribunal?2. assuming such a threat existed, was the Security Council authorized, with a view to restoring ormaintaining peace, to take any measures at its own discretion, or was it bound to choose amongthose expressly provided for in Articles 41 and 42 (and possibly Article 40 as well)?3. in the latter case, how can the establishment of an international criminal tribunal be justified, as itdoes not figure among the ones mentioned in those Articles, and is of a different nature?

1. The Power Of The Security Council To Invoke Chapter VII

28. Article 39 opens Chapter VII of the Charter of the United Nations and determines the conditions ofapplication of this Chapter. It provides:

"The Security Council shall determine the existence of any threat to the peace, breach of the peace,or act of aggression and shall make recommendations, or decide what measures shall be taken inaccordance with Articles 41 and 42, to maintain or restore international peace and security." (UnitedNations Charter, 26 June 1945, Art. 39.)

It is clear from this text that the Security Council plays a pivotal role and exercises a very wide discretionunder this Article. But this does not mean that its powers are unlimited. The Security Council is an organof an international organization, established by a treaty which serves as a constitutional framework forthat organization. The Security Council is thus subjected to certain constitutional limitations, howeverbroad its powers under the constitution may be. Those powers cannot, in any case, go beyond the limits ofthe jurisdiction of the Organization at large, not to mention other specific limitations or those which mayderive from the internal division of power within the Organization. In any case, neither the text nor thespirit of the Charter conceives of the Security Council as legibus solutus (unbound by law).

In particular, Article 24, after declaring, in paragraph 1, that the Members of the United Nations "conferon the Security Council primary responsibility for the maintenance of international peace and security",imposes on it, in paragraph 3, the obligation to report annually (or more frequently) to the GeneralAssembly, and provides, more importantly, in paragraph 2, that:

"In discharging these duties the Security Council shall act in accordance with the Purposes andPrinciples of the United Nations. The specific powers granted to the Security Council for thedischarge of these duties are laid down in Chapters VI, VII, VIII, and XII." (Id., Art. 24(2).)

The Charter thus speaks the language of specific powers, not of absolute fiat.

29. What is the extent of the powers of the Security Council under Article 39 and the limits thereon, ifany?

The Security Council plays the central role in the application of both parts of the Article. It is the SecurityCouncil that makes the determination that there exists one of the situations justifying the use of the"exceptional powers" of Chapter VII. And it is also the Security Council that chooses the reaction to sucha situation: it either makes recommendations (i.e., opts not to use the exceptional powers but to continueto operate under Chapter VI) or decides to use the exceptional powers by ordering measures to be taken inaccordance with Articles 41 and 42 with a view to maintaining or restoring international peace andsecurity.The situations justifying resort to the powers provided for in Chapter VII are a "threat to the peace", a"breach of the peace" or an "act of aggression." While the "act of aggression" is more amenable to a legal

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determination, the "threat to the peace" is more of a political concept. But the determination that thereexists such a threat is not a totally unfettered discretion, as it has to remain, at the very least, within thelimits of the Purposes and Principles of the Charter.

30. It is not necessary for the purposes of the present decision to examine any further the question of thelimits of the discretion of the Security Council in determining the existence of a "threat to the peace", fortwo reasons.

The first is that an armed conflict (or a series of armed conflicts) has been taking place in the territory ofthe former Yugoslavia since long before the decision of the Security Council to establish this InternationalTribunal. If it is considered an international armed conflict, there is no doubt that it falls within the literalsense of the words "breach of the peace" (between the parties or, at the very least, would be a as a "threatto the peace" of others).

But even if it were considered merely as an "internal armed conflict", it would still constitute a "threat tothe peace" according to the settled practice of the Security Council and the common understanding of theUnited Nations membership in general. Indeed, the practice of the Security Council is rich with cases ofcivil war or internal strife which it classified as a "threat to the peace" and dealt with under Chapter VII,with the encouragement or even at the behest of the General Assembly, such as the Congo crisis at thebeginning of the 1960s and, more recently, Liberia and Somalia. It can thus be said that there is a commonunderstanding, manifested by the "subsequent practice" of the membership of the United Nations at large,that the "threat to the peace" of Article 39 may include, as one of its species, internal armed conflicts.

The second reason, which is more particular to the case at hand, is that Appellant has amended hisposition from that contained in the Brief submitted to the Trial Chamber. Appellant no longer contests theSecurity Council's power to determine whether the situation in the former Yugoslavia constituted a threatto the peace, nor the determination itself. He further acknowledges that the Security Council "has thepower to address to such threats [. . .] by appropriate measures." [Defence] Brief to Support the Notice of(Interlocutory) Appeal, 25 August 1995 (Case No. IT-94-1-AR72), at para. 5.4 (hereinafter DefenceAppeal Brief).) But he continues to contest the legality and appropriateness of the measures chosen by theSecurity Council to that end.

2. The Range of Measures Envisaged Under Chapter VII

31. Once the Security Council determines that a particular situation poses a threat to the peace or thatthere exists a breach of the peace or an act of aggression, it enjoys a wide margin of discretion in choosingthe course of action: as noted above (see para. 29) it can either continue, in spite of its determination, toact via recommendations, i.e., as if it were still within Chapter VI ("Pacific Settlement of Disputes") or itcan exercise its exceptional powers under Chapter VII. In the words of Article 39, it would then "decidewhat measures shall be taken in accordance with Articles 41 and 42, to maintain or restore internationalpeace and security." (United Nations Charter, art. 39.)

A question arises in this respect as to whether the choice of the Security Council is limited to themeasures provided for in Articles 41 and 42 of the Charter (as the language of Article 39 suggests), orwhether it has even larger discretion in the form of general powers to maintain and restore internationalpeace and security under Chapter VII at large. In the latter case, one of course does not have to locateevery measure decided by the Security Council under Chapter VII within the confines of Articles 41 and42, or possibly Article 40. In any case, under both interpretations, the Security Council has a broaddiscretion in deciding on the course of action and evaluating the appropriateness of the measures to betaken. The language of Article 39 is quite clear as to the channelling of the very broad and exceptionalpowers of the Security Council under Chapter VII through Articles 41 and 42. These two Articles leave to

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the Security Council such a wide choice as not to warrant searching, on functional or other grounds, foreven wider and more general powers than those already expressly provided for in the Charter.

These powers are coercive vis-à-vis the culprit State or entity. But they are also mandatory vis-à-vis theother Member States, who are under an obligation to cooperate with the Organization (Article 2,paragraph 5, Articles 25, 48) and with one another (Articles 49), in the implementation of the action ormeasures decided by the Security Council.

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 ofaggression, the Security Council has a very wide margin of discretion under Article 39 to choose theappropriate course of action and to evaluate the suitability of the measures chosen, as well as theirpotential contribution to the restoration or maintenance of peace. But here again, this discretion is notunfettered; moreover, it is limited to the measures provided for in Articles 41 and 42. Indeed, in the caseat hand, this last point serves as a basis for the Appellant's contention of invalidity of the establishment ofthe International Tribunal.

In its resolution 827, the Security Council considers that "in the particular circumstances of the formerYugoslavia", the establishment of the International Tribunal "would contribute to the restoration andmaintenance of peace" and indicates that, in establishing it, the Security Council was acting under ChapterVII (S.C. Res. 827, U.N. Doc. S/RES/827 (1993)). However, it did not specify a particular Article as abasis for this action.

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

a) that the establishment of such a tribunal was never contemplated by the framers of the Charter asone of the measures to be taken under Chapter VII; as witnessed by the fact that it figures nowherein the provisions of that Chapter, and more particularly in Articles 41 and 42 which detail thesemeasures;

b) that the Security Council is constitutionally or inherently incapable of creating a judicial organ,as it is conceived in the Charter as an executive organ, hence not possessed of judicial powerswhich can be exercised through a subsidiary organ;

c) that the establishment of the International Tribunal has neither promoted, nor was capable ofpromoting, international peace, as demonstrated by the current situation in the former Yugoslavia.

(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 theenforcement 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 aremeasures of a military nature, implying the use of armed force. Nor can it be considered a "provisionalmeasure" 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.) They are akin to emergencypolice action rather than to the activity of a judicial organ dispensing justice according to law. Moreover,not being enforcement action, according to the language of Article 40 itself ("before making therecommendations or deciding upon the measures provided for in Article 39"), such provisional measures

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are subject to the Charter limitation of Article 2, paragraph 7, and the question of their mandatory orrecommendatory character is subject to great controversy; all of which renders inappropriate theclassification of the International Tribunal under these measures.

34. Prima facie, the International Tribunal matches perfectly the description in Article 41 of "measuresnot involving the use of force." Appellant, however, has argued before both the Trial Chamber and thisAppeals Chamber, that:"

...[I]t is clear that the establishment of a war crimes tribunal was not intended. The examplesmentioned in this article focus upon economic and political measures and do not in any way suggestjudicial measures." (Brief to Support the Motion [of the Defence] on the Jurisdiction of the Tribunalbefore 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 undertakenby 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 beemployed to give effect to its decisions, and it may call upon the Members of the United Nations toapply such measures. These may include complete or partial interruption of economic relations andof rail, sea, air, postal, telegraphic, radio, and other means of communication, and the severance ofdiplomatic relations." (United Nations Charter, art. 41.)

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

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

Moreover, even a simple literal analysis of the Article shows that the first phrase of the first sentencecarries 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 ofmeasures referred to in the first phrase, but not necessarily the only one, namely, measures undertakendirectly 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 inthe first phrase of this sentence.

36. Logically, if the Organization can undertake measures which have to be implemented through theintermediary of its Members, it can a fortiori undertake measures which it can implement directly via itsorgans, if it happens to have the resources to do so. It is only for want of such resources that the UnitedNations has to act through its Members. But it is of the essence of "collective measures" that they arecollectively undertaken. Action by Member States on behalf of the Organization is but a poor substitutefaute de mieux, or a "second best" for want of the first. This is also the pattern of Article 42 on measures

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involving the use of armed force.

In sum, the establishment of the International Tribunal falls squarely within the powers of the SecurityCouncil 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 asubsidiary organ possessed of such powers is untenable: it results from a fundamental misunderstandingof the constitutional set-up of the Charter.

Plainly, the Security Council is not a judicial organ and is not provided with judicial powers (though itmay incidentally perform certain quasi-judicial activities such as effecting determinations or findings).The principal function of the Security Council is the maintenance of international peace and security, inthe 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 ownpowers. Nor does it mean, in reverse, that the Security Council was usurping for itself part of a judicialfunction 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 internationalcriminal tribunal as an instrument for the exercise of its own principal function of maintenance of peaceand security, i.e., as a measure contributing to the restoration and maintenance of peace in the formerYugoslavia.

The General Assembly did not need to have military and police functions and powers in order to be ableto establish the United Nations Emergency Force in the Middle East ("UNEF") in 1956. Nor did theGeneral Assembly have to be a judicial organ possessed of judicial functions and powers in order to beable 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 theAdministrative Tribunal, the General Assembly was not delegating the performance of its ownfunctions: 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 evaluatingthe appropriateness of the chosen measure and its effectiveness in achieving its objective, the restorationof peace.

Article 39 leaves the choice of means and their evaluation to the Security Council, which enjoys widediscretionary powers in this regard; and it could not have been otherwise, as such a choice involvespolitical 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 legalityof such measures ex post facto by their success or failure to achieve their ends (in the present case, therestoration of peace in the former Yugoslavia, in quest of which the establishment of the InternationalTribunal 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

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been lawfully established as a measure under Chapter VII of the Charter.

4. Was The Establishment Of The International Tribunal Contrary To The General PrincipleWhereby Courts Must Be "Established By Law"?

41. Appellant challenges the establishment of the International Tribunal by contending that it has not beenestablished by law. The entitlement of an individual to have a criminal charge against him determined bya tribunal which has been established by law is provided in Article 14, paragraph 1, of the InternationalCovenant on Civil and Political Rights. It provides: "

In the determination of any criminal charge against him, or of his rights and obligations in a suit atlaw, everyone shall be entitled to a fair and public hearing by a competent, independent andimpartial tribunal established by law." (ICCPR, art. 14, para. 1.)

Similar provisions can be found in Article 6(1) of the European Convention on Human Rights, whichstates: "

In the determination of his civil rights and obligations or of any criminal charge against him,everyone is entitled to a fair and public hearing within a reasonable time by an independent andimpartial tribunal established by law [. . .]"(European Convention for the Protection of HumanRights and Fundamental Freedoms, 4 November 1950, art. 6, para. 1, 213 U.N.T.S. 222 (hereinafterECHR))

and in Article 8(1) of the American Convention on Human Rights, which provides: "

Every person has the right to a hearing, with due guarantees and within a reasonable time, by acompetent, independent and impartial tribunal, previously established by law." (AmericanConvention on Human Rights, 22 November 1969, art. 8, para. 1, O.A.S. Treaty Series No. 36, at 1,O.A.S. Off. Rec. OEA/Ser. L/V/II.23 doc. rev. 2 (hereinafter ACHR).)"

Appellant argues that the right to have a criminal charge determined by a tribunal established by law isone 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. Insupport 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 Conventionon Human Rights and the American Convention on Human Rights. Appellant asserts that they areminimum requirements in international law for the administration of criminal justice.

42. For the reasons outlined below, Appellant has not satisfied this Chamber that the requirements laiddown in these three conventions must apply not only in the context of national legal systems but also withrespect to proceedings conducted before an international court. This Chamber is, however, satisfied thatthe principle that a tribunal must be established by law, as explained below, is a general principle of lawimposing an international obligation which only applies to the administration of criminal justice in amunicipal setting. It follows from this principle that it is incumbent on all States to organize their systemof criminal justice in such a way as to ensure that all individuals are guaranteed the right to have acriminal charge determined by a tribunal established by law. This does not mean, however, that, bycontrast, an international criminal court could be set up at the mere whim of a group of governments.Such a court ought to be rooted in the rule of law and offer all guarantees embodied in the relevantinternational instruments. Then the court may be said to be "established by law."

43. Indeed, there are three possible interpretations of the term "established by law." First, as Appellantargues, "established by law" could mean established by a legislature. Appellant claims that the

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International Tribunal is the product of a "mere executive order" and not of a "decision making processunder democratic control, necessary to create a judicial organisation in a democratic society." ThereforeAppellant maintains that the International Tribunal not been "established by law." (Defence Appeal Brief,at para. 5.4.)

The case law applying the words "established by law" in the European Convention on Human Rights hasfavoured this interpretation of the expression. This case law bears out the view that the relevant provisionis intended to ensure that tribunals in a democratic society must not depend on the discretion of theexecutive; rather they should be regulated by law emanating from Parliament. (See Zand v. Austria, App.No. 7360/76, 15 Eur. Comm'n H.R. Dec. & Rep. 70, at 80 (1979); Piersack v. Belgium, App. No.8692/79, 47 Eur. Ct. H.R. (ser. B) at 12 (1981); Crociani, Palmiotti, Tanassi and D'Ovidio v. Italy, App.Nos. 8603/79, 8722/79, 8723/79 & 8729/79 (joined) 22 Eur. Comm'n H.R. Dec. & Rep. 147, at 219(1981).)

Or, put another way, the guarantee is intended to ensure that the administration of justice is not a matter ofexecutive discretion, but is regulated by laws made by the legislature.

It is clear that the legislative, executive and judicial division of powers which is largely followed in mostmunicipal systems does not apply to the international setting nor, more specifically, to the setting of aninternational organization such as the United Nations. Among the principal organs of the United Nationsthe divisions between judicial, executive and legislative functions are not clear cut. Regarding the judicialfunction, the International Court of Justice is clearly the "principal judicial organ" (see United NationsCharter, art. 92). There is, however, no legislature, in the technical sense of the term, in the UnitedNations system and, more generally, no Parliament in the world community. That is to say, there exists nocorporate 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 above-discussed divisionswhich exist in the national law of States. Indeed, Appellant has agreed that the constitutional structure ofthe 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 anobligation 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 ofinternational courts by a body which, though not a Parliament, has a limited power to take bindingdecisions. In our view, one such body is the Security Council when, acting under Chapter VII of theUnited 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 nationaldivision of powers, discussed above, the conclusion must be that the United Nations system is not capableof creating the International Tribunal unless there is an amendment to the United Nations Charter. Wedisagree. It does not follow from the fact that the United Nations has no legislature that the SecurityCouncil is not empowered to set up this International Tribunal if it is acting pursuant to an authority foundwithin its constitution, the United Nations Charter. As set out above (paras. 28-40) we are of the view thatthe Security Council was endowed with the power to create this International Tribunal as a measure underChapter 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 bythe "representative" organ of the United Nations, the General Assembly: this body not only participated inits setting up, by electing the Judges and approving the budget, but also expressed its satisfaction with,

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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 November1994) and G.A. Res. 49/205 (23 December 1994).)

45. The third possible interpretation of the requirement that the International Tribunal be "established bylaw" is that its establishment must be in accordance with the rule of law. This appears to be the mostsensible and most likely meaning of the term in the context of international law. For a tribunal such as thisone to be established according to the rule of law, it must be established in accordance with the properinternational standards; it must provide all the guarantees of fairness, justice and even-handedness, in fullconformity with internationally recognized human rights instruments.

This interpretation of the guarantee that a tribunal be "established by law" is borne out by an analysis ofthe International Covenant on Civil and Political Rights. As noted by the Trial Chamber, at the timeArticle 14 of the International Covenant on Civil and Political Rights was being drafted, it was sought,unsuccessfully, to amend it to require that tribunals should be "pre-established" by law and not merely"established by law" (Decision at Trial, at para. 34). Two similar proposals to this effect were made (oneby the representative of Lebanon and one by the representative of Chile); if adopted, their effect wouldhave been to prevent all ad hoc tribunals. In response, the delegate from the Philippines noted thedisadvantages of using the language of "pre-established by law":

"If [the Chilean or Lebanese proposal was approved], a country would never be able to reorganizeits tribunals. Similarly it could be claimed that the Nürnberg tribunal was not in existence at thetime the war criminals had committed their crimes." (See E/CN.4/SR 109. United NationsEconomic and Social Council, Commission on Human Rights, 5th Sess., Sum. Rec. 8 June 1949,U.N. Doc. 6.)

As noted by the Trial Chamber in its Decision, there is wide agreement that, in most respects, theInternational Military Tribunals at Nuremberg and Tokyo gave the accused a fair trial in a proceduralsense (Decision at Trial, at para. 34). The important consideration in determining whether a tribunal hasbeen "established by law" is not whether it was pre-established or established for a specific purpose orsituation; what is important is that it be set up by a competent organ in keeping with the relevant legalprocedures, and should that it observes the requirements of procedural fairness.

This concern about ad hoc tribunals that function in such a way as not to afford the individual before thembasic fair trial guarantees also underlies United Nations Human Rights Committee's interpretation of thephrase "established by law" contained in Article 14, paragraph 1, of the International Covenant on Civiland Political Rights. While the Human Rights Committee has not determined that "extraordinary"tribunals or "special" courts are incompatible with the requirement that tribunals be established by law, ithas taken the position that the provision is intended to ensure that any court, be it "extraordinary" or not,should genuinely afford the accused the full guarantees of fair trial set out in Article 14 of theInternational Covenant on Civil and Political Rights. (See General Comment on Article 14, H.R. Comm.43rd Sess., Supp. No. 40, at para. 4, U.N. Doc. A/43/40 (1988), Cariboni v. Uruguay H.R.Comm. 159/83.39th Sess. Supp. No. 40 U.N. Doc. A/39/40.) A similar approach has been taken by the Inter-AmericanCommission. (See, e.g., Inter-Am C.H.R., Annual Report 1972, OEA/Ser. P, AG/doc. 305/73 rev. 1, 14March 1973, at 1; Inter-Am C.H.R., Annual Report 1973, OEA/Ser. P, AG/doc. 409/174, 5 March 1974,at 2-4.) The practice of the Human Rights Committee with respect to State reporting obligations indicatesits tendency to scrutinise closely "special" or "extraordinary" criminal courts in order to ascertain whetherthey ensure compliance with the fair trial requirements of Article 14.

46. An examination of the Statute of the International Tribunal, and of the Rules of Procedure andEvidence adopted pursuant to that Statute leads to the conclusion that it has been established in

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accordance with the rule of law. The fair trial guarantees in Article 14 of the International Covenant onCivil and Political Rights have been adopted almost verbatim in Article 21 of the Statute. Other fair trialguarantees 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 theJudges of the International Tribunal, while various other provisions in the Rules ensure equality of armsand fair trial.

47. In conclusion, the Appeals Chamber finds that the International Tribunal has been established inaccordance with the appropriate procedures under the United Nations Charter and provides all thenecessary safeguards of a fair trial. It is thus "established by law."

48. The first ground of Appeal: unlawful establishment of the International Tribunal, is accordinglydismissed.

III. UNJUSTIFIED PRIMACY OF THE INTERNATIONAL TRIBUNAL OVER COMPETENTDOMESTIC COURTS

49. The second ground of appeal attacks the primacy of the International Tribunal over national courts.

50. This primacy is established by Article 9 of the Statute of the International Tribunal, which provides:

"Concurrent jurisdiction

1. The International Tribunal and national courts shall have concurrent jurisdiction to prosecutepersons for serious violations of international humanitarian law committed in the territory of theformer Yugoslavia since 1 January 1991.

2. The International Tribunal shall have primacy over national courts. At any stage of theprocedure, the International Tribunal may formally request national courts to defer to thecompetence of the International Tribunal in accordance with the present Statute and the Rules ofProcedure and Evidence of the International Tribunal." (Emphasis added.)

Appellant's submission is material to the issue, inasmuch as Appellant is expected to stand trial before thisInternational Tribunal as a consequence of a request for deferral which the International Tribunalsubmitted to the Government of the Federal Republic of Germany on 8 November 1994 and which thisGovernment, as it was bound to do, agreed to honour by surrendering Appellant to the InternationalTribunal. (United Nations Charter, art. 25, 48 & 49; Statute of the Tribunal, art. 29.2(e); Rules ofProcedure, Rule 10.)

In relevant part, Appellant's motion alleges: " [The International Tribunal's] primacy over domestic courtsconstitutes an infringement upon the sovereignty of the States directly affected." ([Defence] Motion onthe Jurisdiction of the Tribunal, 23 June 1995 (Case No. IT-94-1-T), at para. 2.)

Appellant's Brief in support of the motion before the Trial Chamber went into further details which he setdown under three headings:

(a) domestic jurisdiction;

(b) sovereignty of States;

(c) jus de non evocando.

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The Prosecutor has contested each of the propositions put forward by Appellant. So have two of theamicus curiae, one before the Trial Chamber, the other in appeal.

The Trial Chamber has analysed Appellant's submissions and has concluded that they cannot beentertained.

51. Before this Chamber, Appellant has somewhat shifted the focus of his approach to the question ofprimacy. It seems fair to quote here Appellant's Brief in appeal:

"The defence submits that the Trial Chamber should have denied it's [sic] competence to exerciseprimary jurisdiction while the accused was at trial in the Federal Republic of Germany and theGerman judicial authorities were adequately meeting their obligations under international law."(Defence Appeal Brief, at para. 7.5.)

However, the three points raised in first instance were discussed at length by the Trial Chamber and, eventhough not specifically called in aid by Appellant here, are nevertheless intimately intermingled when theissue of primacy is considered. The Appeals Chamber therefore proposes to address those three points butnot before having dealt with an apparent confusion which has found its way into Appellant's brief.

52. In paragraph 7.4 of his Brief, Appellant states that "the accused was diligently prosecuted by theGerman judicial authorities"(id., at para 7.4 (Emphasis added)). In paragraph 7.5 Appellant returns to theperiod "while the accused was at trial." (id., at para 7.5 (Emphasis added.)These statements are not in agreement with the findings of the Trial Chamber I in its decision on deferralof 8 November 1994:

"The Prosecutor asserts, and it is not disputed by the Government of the Federal Republic ofGermany, nor by the Counsel for Du{ko Tadic, that the said Du{ko Tadic is the subject of aninvestigation instituted by the national courts of the Federal Republic of Germany in respect of thematters listed in paragraph 2 hereof." (Decision of the Trial Chamber on the Application by theProsecutor for a Formal Request for Deferral to the Competence of the International Tribunal in theMatter of Du{ko Tadic, 8 November 1994 (Case No. IT-94-1-D), at 8 (Emphasis added).)

There is a distinct difference between an investigation and a trial. The argument of Appellant, basederroneously on the existence of an actual trial in Germany, cannot be heard in support of his challenge tojurisdiction when the matter has not yet passed the stage of investigation.

But there is more to it. Appellant insists repeatedly (see Defence Appeal Brief, at paras. 7.2 & 7.4) onimpartial and independent proceedings diligently pursued and not designed to shield the accused frominternational criminal responsibility. One recognises at once that this vocabulary is borrowed from Article10, paragraph 2, of the Statute. This provision has nothing to do with the present case. This is not aninstance of an accused being tried anew by this International Tribunal, under the exceptionalcircumstances described in Article 10 of the Statute. Actually, the proceedings against Appellant weredeferred to the International Tribunal on the strength of Article 9 of the Statute which provides that arequest for deferral may be made "at any stage of the procedure" (Statute of the International Tribunal, art.9, para. 2). The Prosecutor has never sought to bring Appellant before the International Tribunal for a newtrial for the reason that one or the other of the conditions enumerated in Article 10 would have vitiated histrial in Germany. Deferral of the proceedings against Appellant was requested in accordance with theprocedure set down in Rule 9 (iii):

"What is in issue is closely related to, or otherwise involves, significant factual or legal questionswhich may have implications for investigations or prosecutions before the Tribunal [. . .]" (Rules of

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Procedure, Rule 9 (iii).)

After the Trial Chamber had found that that condition was satisfied, the request for deferral followedautomatically. The conditions alleged by Appellant in his Brief were irrelevant.

Once this approach is rectified, Appellant's contentions lose all merit.

53. As pointed out above, however, three specific arguments were advanced before the Trial Chamber,which are clearly referred to in Appellant's Brief in appeal. It would not be advisable to leave this groundof appeal based on primacy without giving those questions the consideration they deserve.

The Chamber now proposes to examine those three points in the order in which they have been raised byAppellant.

A. Domestic Jurisdiction

54. Appellant argued in first instance that:

"From the moment Bosnia-Herzegovina was recognised as an independent state, it had thecompetence to establish jurisdiction to try crimes that have been committed on its territory."(Defence Trial Brief, at para. 5.)

Appellant added that:

"As a matter of fact the state of Bosnia-Herzegovina does exercise its jurisdiction, not only inmatters of ordinary criminal law, but also in matters of alleged violations of crimes againsthumanity, as for example is the case with the prosecution of Mr Karadzic et al."(Id. at para. 5.2.)

This first point is not contested and the Prosecutor has conceded as much. But it does not, by itself, settlethe question of the primacy of the International Tribunal. Appellant also seems so to realise. Appellanttherefore explores the matter further and raises the question of State sovereignty.

B. Sovereignty Of States

55. Article 2 of the United Nations Charter provides in paragraph 1: "The Organization is based on theprinciple of the sovereign equality of all its Members."

In Appellant's view, no State can assume jurisdiction to prosecute crimes committed on the territory ofanother State, barring a universal interest "justified by a treaty or customary international law or an opiniojuris on the issue." (Defence Trial Brief, at para. 6.2.)

Based on this proposition, Appellant argues that the same requirements should underpin the establishmentof an international tribunal destined to invade an area essentially within the domestic jurisdiction ofStates. In the present instance, the principle of State sovereignty would have been violated. The TrialChamber has rejected this plea, holding among other reasons:

"In any event, the accused not being a State lacks the locus standi to raise the issue of primacy,which involves a plea that the sovereignty of a State has been violated, a plea only a sovereign Statemay raise or waive and a right clearly the accused cannot take over from the State." (Decision atTrial, para. 41.)

The Trial Chamber relied on the judgement of the District Court of Jerusalem in Israel v. Eichmann:

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"The right to plead violation of the sovereignty of a State is the exclusive right of that State. Only asovereign State may raise the plea or waive it, and the accused has no right to take over the rights ofthat State." (36 International Law Reports 5, 62 (1961), affirmed by Supreme Court of Israel, 36International Law Reports 277 (1962).)

Consistently with a long line of cases, a similar principle was upheld more recently in the United States ofAmerica in the matter of United States v. Noriega:

"As a general principle of international law, individuals have no standing to challenge violations ofinternational treaties in the absence of a protest by the sovereign involved." (746 F. Supp. 1506,1533 (S.D. Fla. 1990).)

Authoritative as they may be, those pronouncements do not carry, in the field of international law, theweight which they may bring to bear upon national judiciaries. Dating back to a period when sovereigntystood as a sacrosanct and unassailable attribute of statehood, this concept recently has sufferedprogressive erosion at the hands of the more liberal forces at work in the democratic societies, particularlyin the field of human rights.

Whatever the situation in domestic litigation, the traditional doctrine upheld and acted upon by the TrialChamber is not reconcilable, in this International Tribunal, with the view that an accused, being entitled toa full defence, cannot be deprived of a plea so intimately connected with, and grounded in, internationallaw as a defence based on violation of State sovereignty. To bar an accused from raising such a plea istantamount to deciding that, in this day and age, an international court could not, in a criminal matterwhere the liberty of an accused is at stake, examine a plea raising the issue of violation of Statesovereignty. Such a startling conclusion would imply a contradiction in terms which this Chamber feels itis its duty to refute and lay to rest.

56. That Appellant be recognised the right to plead State sovereignty does not mean, of course, that hisplea must be favourably received. He has to discharge successfully the test of the burden ofdemonstration. Appellant's plea faces several obstacles, each of which may be fatal, as the Trial Chamberhas actually determined.

Appellant can call in aid Article 2, paragraph 7, of the United Nations Charter: "Nothing contained in thepresent Charter shall authorize the United Nations to intervene in matters which are essentially within thedomestic jurisdiction of any State [. . .]." However, one should not forget the commanding restriction atthe end of the same paragraph: "but this principle shall not prejudice the application of enforcementmeasures under Chapter VII." (United Nations Charter, art. 2, para. 7.)

Those are precisely the provisions under which the International Tribunal has been established. Evenwithout these provisions, matters can be taken out of the jurisdiction of a State. In the present case, theRepublic of Bosnia and Herzegovina not only has not contested the jurisdiction of the InternationalTribunal but has actually approved, and collaborated with, the International Tribunal, as witnessed by:

a) Letter dated 10 August 1992 from the President of the Republic of Bosnia and Herzegovinaaddressed to the Secretary-General of the United Nations (U.N. Doc. E/CN.4/1992/S-1/5 (1992));

b) Decree with Force of Law on Deferral upon Request by the International Tribunal 12 OfficialGazette of the Republic of Bosnia and Herzegovina 317 (10 April 1995) (translation);

c) Letter from Vasvija Vidovic, Liaison Officer of the Republic of Bosnia and Herzegovina, to theInternational Tribunal (4 July 1995).

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As to the Federal Republic of Germany, its cooperation with the International Tribunal is public and hasbeen previously noted.

The Trial Chamber was therefore fully justified to write, on this particular issue:

"[I]t is pertinent to note that the challenge to the primacy of the International Tribunal has beenmade against the express intent of the two States most closely affected by the indictment against theaccused - Bosnia and Herzegovina and the Federal Republic of Germany. The former, on theterritory of which the crimes were allegedly committed, and the latter where the accused resided atthe time of his arrest, have unconditionally accepted the jurisdiction of the International Tribunaland the accused cannot claim the rights that have been specifically waived by the States concerned.To allow the accused to do so would be to allow him to select the forum of his choice, contrary tothe principles relating to coercive criminal jurisdiction." (Decision at Trial, at para. 41.)

57. This is all the more so in view of the nature of the offences alleged against Appellant, offences which,if proven, do not affect the interests of one State alone but shock the conscience of mankind.

As early as 1950, in the case of General Wagener, the Supreme Military Tribunal of Italy held:

"These norms [concerning crimes against laws and customs of war], due to their highly ethical andmoral content, have a universal character, not a territorial one.

[. . .]

The solidarity among nations, aimed at alleviating in the best possible way the horrors of war, gaverise to the need to dictate rules which do not recognise borders, punishing criminals wherever theymay be.

[. . .]

Crimes against the laws and customs of war cannot be considered political offences, as they do notharm a political interest of a particular State, nor a political right of a particular citizen. They are,instead, crimes of lèse-humanité (reati di lesa umanità) and, as previously demonstrated, the normsprohibiting them have a universal character, not simply a territorial one. Such crimes, therefore, dueto their very subject matter and particular nature are precisely of a different and opposite kind frompolitical offences. The latter generally, concern only the States against whom they are committed;the former concern all civilised States, and are to be opposed and punished, in the same way as thecrimes of piracy, trade of women and minors, and enslavement are to be opposed and punished,wherever they may have been committed (articles 537 and 604 of the penal code)." (13 March1950, in Rivista Penale 753, 757 (Sup. Mil. Trib., Italy 1950; unofficial translation).1

Twelve years later the Supreme Court of Israel in the Eichmann case could draw a similar picture:

"[T]hese crimes constitute acts which damage vital international interests; they impair thefoundations and security of the international community; they violate the universal moral valuesand humanitarian principles that lie hidden in the criminal law systems adopted by civilised nations.The underlying principle in international law regarding such crimes is that the individual who hascommitted any of them and who, when doing so, may be presumed to have fully comprehended theheinous nature of his act, must account for his conduct. [. . .]

Those crimes entail individual criminal responsibility because they challenge the foundations ofinternational society and affront the conscience of civilised nations.

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[. . .]

[T]hey involve the perpetration of an international crime which all the nations of the world areinterested in preventing."(Israel v. Eichmann, 36 International Law Reports 277, 291-93 (Isr. S.Ct. 1962).)

58. The public revulsion against similar offences in the 1990s brought about a reaction on the part of thecommunity of nations: hence, among other remedies, the establishment of an international judicial bodyby an organ of an organization representing the community of nations: the Security Council. This organ isempowered and mandated, by definition, to deal with trans-boundary matters or matters which, thoughdomestic in nature, may affect "international peace and security" (United Nations Charter, art 2. (1), 2.(7),24, & 37). It would be a travesty of law and a betrayal of the universal need for justice, should the conceptof State sovereignty be allowed to be raised successfully against human rights. Borders should not beconsidered as a shield against the reach of the law and as a protection for those who trample underfoot themost elementary rights of humanity. In the Barbie case, the Court of Cassation of France has quoted withapproval the following statement of the Court of Appeal:

"[. . .]by reason of their nature, the crimes against humanity [. . .] do not simply fall within thescope of French municipal law but are subject to an international criminal order to which thenotions of frontiers and extradition rules arising therefrom are completely foreign. (FédérationNationale de Déportés et Internés Résistants et Patriotes And Others v. Barbie, 78 InternationalLaw Reports 125, 130 (Cass. crim.1983).)2

Indeed, when an international tribunal such as the present one is created, it must be endowed withprimacy over national courts. Otherwise, human nature being what it is, there would be a perennial dangerof international crimes being characterised as "ordinary crimes" (Statute of the International Tribunal, art.10, para. 2(a)), or proceedings being "designed to shield the accused", or cases not being diligentlyprosecuted (Statute of the International Tribunal, art. 10, para. 2(b)).

If not effectively countered by the principle of primacy, any one of those stratagems might be used todefeat the very purpose of the creation of an international criminal jurisdiction, to the benefit of the verypeople whom it has been designed to prosecute.

59. The principle of primacy of this International Tribunal over national courts must be affirmed; themore so since it is confined within the strict limits of Articles 9 and 10 of the Statute and Rules 9 and 10of the Rules of Procedure of the International Tribunal.

The Trial Chamber was fully justified in writing:

"Before leaving this question relating to the violation of the sovereignty of States, it should be notedthat the crimes which the International Tribunal has been called upon to try are not crimes of apurely domestic nature. They are really crimes which are universal in nature, well recognised ininternational law as serious breaches of international humanitarian law, and transcending theinterest of any one State. The Trial Chamber agrees that in such circumstances, the sovereign rightsof States cannot and should not take precedence over the right of the international community to actappropriately as they affect the whole of mankind and shock the conscience of all nations of theworld. There can therefore be no objection to an international tribunal properly constituted tryingthese crimes on behalf of the international community."(Decision at Trial, at para. 42.)

60. The plea of State sovereignty must therefore be dismissed.

C. Jus De Non Evocando

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61. Appellant argues that he has a right to be tried by his national courts under his national laws.

No one has questioned that right of Appellant. The problem is elsewhere: is that right exclusive? Does itprevent Appellant from being tried - and having an equally fair trial (see Statute of the InternationalTribunal, art. 21) - before an international tribunal?

Appellant contends that such an exclusive right has received universal acceptance: yet one cannot find itexpressed either in the Universal Declaration of Human Rights or in the International Covenant on Civiland Political Rights, unless one is prepared to stretch to breaking point the interpretation of theirprovisions.

In support of this stand, Appellant has quoted seven national Constitutions (Article 17 of the Constitutionof the Netherlands, Article 101 of the Constitution of Germany (unified), Article 13 of the Constitution ofBelgium, Article 25 of the Constitution of Italy, Article 24 of the Constitution of Spain, Article 10 of theConstitution of Surinam and Article 30 of the Constitution of Venezuela). However, on examination,these provisions do not support Appellant's argument. For instance, the Constitution of Belgium (beingthe first in time) provides:

"Art. 13: No person may be withdrawn from the judge assigned to him by the law, save with hisconsent." (Blaustein & Flanz, Constitutions of the Countries of the World, (1991).)

The other constitutional provisions cited are either similar in substance, requiring only that no person beremoved from his or her "natural judge" established by law, or are irrelevant to Appellant's argument.

62. As a matter of fact - and of law - the principle advocated by Appellant aims at one very specific goal:to avoid the creation of special or extraordinary courts designed to try political offences in times of socialunrest without guarantees of a fair trial.

This principle is not breached by the transfer of jurisdiction to an international tribunal created by theSecurity Council acting on behalf of the community of nations. No rights of accused are thereby infringedor threatened; quite to the contrary, they are all specifically spelt out and protected under the Statute of theInternational Tribunal. No accused can complain. True, he will be removed from his "natural" nationalforum; but he will be brought before a tribunal at least equally fair, more distanced from the facts of thecase and taking a broader view of the matter.

Furthermore, one cannot but rejoice at the thought that, universal jurisdiction being nowadaysacknowledged in the case of international crimes, a person suspected of such offences may finally bebrought before an international judicial body for a dispassionate consideration of his indictment byimpartial, independent and disinterested judges coming, as it happens here, from all continents of theworld.

63. The objection founded on the theory of jus de non evocando was considered by the Trial Chamberwhich disposed of it in the following terms:

"Reference was also made to the jus de non evocando, a feature of a number of nationalconstitutions. But that principle, if it requires that an accused be tried by the regularly establishedcourts and not by some special tribunal set up for that particular purpose, has no application whenwhat is in issue is the exercise by the Security Council, acting under Chapter VII, of the powersconferred upon it by the Charter of the United Nations. Of course, this involves some surrender ofsovereignty by the member nations of the United Nations but that is precisely what was achieved bythe adoption of the Charter." (Decision at Trial, at para. 37.)

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No new objections were raised before the Appeals Chamber, which is satisfied with concurring, on thisparticular point, with the views expressed by the Trial Chamber.

64. For these reasons the Appeals Chamber concludes that Appellant's second ground of appeal,contesting the primacy of the International Tribunal, is ill-founded and must be dismissed.

IV. LACK OF SUBJECT-MATTER JURISDICTION

65. Appellant's third ground of appeal is the claim that the International Tribunal lacks subject-matterjurisdiction over the crimes alleged. The basis for this allegation is Appellant's claim that the subject-matter jurisdiction under Articles 2, 3 and 5 of the Statute of the International Tribunal is limited tocrimes committed in the context of an international armed conflict. Before the Trial Chamber, Appellantclaimed that the alleged crimes, even if proven, were committed in the context of an internal armedconflict. On appeal an additional alternative claim is asserted to the effect that there was no armed conflictat all in the region where the crimes were allegedly committed.

Before the Trial Chamber, the Prosecutor responded with alternative arguments that: (a) the conflicts inthe former Yugoslavia should be characterized as an international armed conflict; and (b) even if theconflicts were characterized as internal, the International Tribunal has jurisdiction under Articles 3 and 5to adjudicate the crimes alleged. On appeal, the Prosecutor maintains that, upon adoption of the Statute,the Security Council determined that the conflicts in the former Yugoslavia were international and that, bydint of that determination, the International Tribunal has jurisdiction over this case.

The Trial Chamber denied Appellant's motion, concluding that the notion of international armed conflictwas not a jurisdictional criterion of Article 2 and that Articles 3 and 5 each apply to both internal andinternational armed conflicts. The Trial Chamber concluded therefore that it had jurisdiction, regardless ofthe nature of the conflict, and that it need not determine whether the conflict is internal or international.

A. Preliminary Issue: The Existence Of An Armed Conflict

66. Appellant now asserts the new position that there did not exist a legally cognizable armed conflict -either internal or international - at the time and place that the alleged offences were committed.Appellant's argument is based on a concept of armed conflict covering only the precise time and place ofactual hostilities. Appellant claims that the conflict in the Prijedor region (where the alleged crimes aresaid to have taken place) was limited to a political assumption of power by the Bosnian Serbs and did notinvolve armed combat (though movements of tanks are admitted). This argument presents a preliminaryissue to which we turn first.

67. International humanitarian law governs the conduct of both internal and international armed conflicts.Appellant correctly points out that for there to be a violation of this body of law, there must be an armedconflict. The definition of "armed conflict" varies depending on whether the hostilities are international orinternal but, contrary to Appellant's contention, the temporal and geographical scope of both internal andinternational armed conflicts extends beyond the exact time and place of hostilities. With respect to thetemporal frame of reference of international armed conflicts, each of the four Geneva Conventionscontains language intimating that their application may extend beyond the cessation of fighting. Forexample, both Conventions I and III apply until protected persons who have fallen into the power of theenemy have been released and repatriated. (Convention for the Amelioration of the Condition of theWounded and Sick in Armed Forces in the Field, 12 August 1949, art. 5, 75 U.N.T.S. 970 (hereinafterGeneva Convention I); Convention relative to the Treatment of Prisoners of War, 12 August 1949, art. 5,75 U.N.T.S. 972 (hereinafter Geneva Convention III); see also Convention relative to the Protection ofCivilian Persons in Time of War, 12 August 1949, art. 6, 75 U.N.T.S. 973 (hereinafter Geneva

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Convention IV).)

68. Although the Geneva Conventions are silent as to the geographical scope of international "armedconflicts," the provisions suggest that at least some of the provisions of the Conventions apply to theentire territory of the Parties to the conflict, not just to the vicinity of actual hostilities. Certainly, some ofthe provisions are clearly bound up with the hostilities and the geographical scope of those provisionsshould be so limited. Others, particularly those relating to the protection of prisoners of war and civilians,are not so limited. With respect to prisoners of war, the Convention applies to combatants in the power ofthe enemy; it makes no difference whether they are kept in the vicinity of hostilities. In the same vein,Geneva Convention IV protects civilians anywhere in the territory of the Parties. This construction isimplicit in Article 6, paragraph 2, of the Convention, which stipulates that:

"[i]n the territory of Parties to the conflict, the application of the present Convention shall cease onthe general close of military operations." (Geneva Convention IV, art. 6, para. 2 (Emphasis added).)

Article 3(b) of Protocol I to the Geneva Conventions contains similar language. (Protocol Additional tothe Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of InternationalArmed Conflicts, 12 December 1977, art. 3(b), 1125 U.N.T.S. 3 (hereinafter Protocol I).) In addition tothese textual references, the very nature of the Conventions - particularly Conventions III and IV - dictatestheir application throughout the territories of the parties to the conflict; any other construction wouldsubstantially defeat their purpose.

69. The geographical and temporal frame of reference for internal armed conflicts is similarly broad. Thisconception is reflected in the fact that beneficiaries of common Article 3 of the Geneva Conventions arethose taking no active part (or no longer taking active part) in the hostilities. This indicates that the rulescontained in Article 3 also apply outside the narrow geographical context of the actual theatre of combatoperations. Similarly, certain language in Protocol II to the Geneva Conventions (a treaty which, as weshall see in paragraphs 88 and 114 below, may be regarded as applicable to some aspects of the conflictsin the former Yugoslavia) also suggests a broad scope. First, like common Article 3, it explicitly protects "[a]ll persons who do not take a direct part or who have ceased to take part in hostilities." (ProtocolAdditional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims ofNon-International Armed Conflicts, 12 December 1977, art. 4, para.1, 1125 U.N.T.S. 609 (hereinafterProtocol II). Article 2, paragraph 1, provides:

"[t]his Protocol shall be applied [. . . ] to all persons affected by an armed conflict as defined inArticle 1."(Id. at art. 2, para. 1 (Emphasis added).)

The same provision specifies in paragraph 2 that:

"[A]t the end of the conflict, all the persons who have been deprived of their liberty or whose liberty hasbeen restricted for reasons related to such conflict, as well as those deprived of their liberty or whoseliberty is restricted after the conflict for the same reasons, shall enjoy the protection of Articles 5 and 6until the end of such deprivation or restriction of liberty."(Id. at art. 2, para. 2.)

Under this last provision, the temporal scope of the applicable rules clearly reaches beyond the actualhostilities. Moreover, the relatively loose nature of the language "for reasons related to such conflict",suggests a broad geographical scope as well. The nexus required is only a relationship between theconflict and the deprivation of liberty, not that the deprivation occurred in the midst of battle.

70. On the basis of the foregoing, we find that an armed conflict exists whenever there is a resort to armedforce between States or protracted armed violence between governmental authorities and organized armed

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groups or between such groups within a State. International humanitarian law applies from the initiationof such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peaceis reached; or, in the case of internal conflicts, a peaceful settlement is achieved. Until that moment,international humanitarian law continues to apply in the whole territory of the warring States or, in thecase of internal conflicts, the whole territory under the control of a party, whether or not actual combattakes place there.

Applying the foregoing concept of armed conflicts to this case, we hold that the alleged crimes werecommitted in the context of an armed conflict. Fighting among the various entities within the formerYugoslavia began in 1991, continued through the summer of 1992 when the alleged crimes are said tohave been committed, and persists to this day. Notwithstanding various temporary cease-fire agreements,no general conclusion of peace has brought military operations in the region to a close. These hostilitiesexceed the intensity requirements applicable to both international and internal armed conflicts. There hasbeen protracted, large-scale violence between the armed forces of different States and betweengovernmental forces and organized insurgent groups. Even if substantial clashes were not occurring in thePrijedor region at the time and place the crimes allegedly were committed - a factual issue on which theAppeals Chamber does not pronounce - international humanitarian law applies. It is sufficient that thealleged crimes were closely related to the hostilities occurring in other parts of the territories controlled bythe parties to the conflict. There is no doubt that the allegations at issue here bear the requiredrelationship. The indictment states that in 1992 Bosnian Serbs took control of the Opstina of Prijedor andestablished a prison camp in Omarska. It further alleges that crimes were committed against civiliansinside and outside the Omarska prison camp as part of the Bosnian Serb take-over and consolidation ofpower in the Prijedor region, which was, in turn, part of the larger Bosnian Serb military campaign toobtain control over Bosnian territory. Appellant offers no contrary evidence but has admitted in oralargument that in the Prijedor region there were detention camps run not by the central authorities ofBosnia-Herzegovina but by Bosnian Serbs (Appeal Transcript; 8 September 1995, at 36-7). In light of theforegoing, we conclude that, for the purposes of applying international humanitarian law, the crimesalleged were committed in the context of an armed conflict.

B. Does The Statute Refer Only To International Armed Conflicts?

1. Literal Interpretation Of The Statute

71. On the face of it, some provisions of the Statute are unclear as to whether they apply to offencesoccurring in international armed conflicts only, or to those perpetrated in internal armed conflicts as well.Article 2 refers to "grave breaches" of the Geneva Conventions of 1949, which are widely understood tobe committed only in international armed conflicts, so the reference in Article 2 would seem to suggestthat the Article is limited to international armed conflicts. Article 3 also lacks any express reference to thenature of the underlying conflict required. A literal reading of this provision standing alone may lead oneto believe that it applies to both kinds of conflict. By contrast, Article 5 explicitly confers jurisdiction overcrimes committed in either internal or international armed conflicts. An argument a contrario based onthe absence of a similar provision in Article 3 might suggest that Article 3 applies only to one class ofconflict rather than to both of them. In order better to ascertain the meaning and scope of these provisions,the Appeals Chamber will therefore consider the object and purpose behind the enactment of the Statute.

2. Teleological Interpretation Of The Statute

72. In adopting resolution 827, the Security Council established the International Tribunal with the statedpurpose of bringing to justice persons responsible for serious violations of international humanitarian lawin the former Yugoslavia, thereby deterring future violations and contributing to the re-establishment ofpeace and security in the region. The context in which the Security Council acted indicates that it intended

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to achieve this purpose without reference to whether the conflicts in the former Yugoslavia were internalor international.

As the members of the Security Council well knew, in 1993, when the Statute was drafted, the conflicts inthe former Yugoslavia could have been characterized as both internal and international, or alternatively,as an internal conflict alongside an international one, or as an internal conflict that had becomeinternationalized because of external support, or as an international conflict that had subsequently beenreplaced by one or more internal conflicts, or some combination thereof. The conflict in the formerYugoslavia had been rendered international by the involvement of the Croatian Army in Bosnia-Herzegovina and by the involvement of the Yugoslav National Army ("JNA") in hostilities in Croatia, aswell as in Bosnia-Herzegovina at least until its formal withdrawal on 19 May 1992. To the extent that theconflicts had been limited to clashes between Bosnian Government forces and Bosnian Serb rebel forcesin Bosnia-Herzegovina, as well as between the Croatian Government and Croatian Serb rebel forces inKrajina (Croatia), they had been internal (unless direct involvement of the Federal Republic of Yugoslavia(Serbia-Montenegro) could be proven). It is notable that the parties to this case also agree that theconflicts in the former Yugoslavia since 1991 have had both internal and international aspects. (SeeTranscript of the Hearing on the Motion on Jurisdiction, 26 July 1995, at 47, 111.)

73. The varying nature of the conflicts is evidenced by the agreements reached by various parties to abideby certain rules of humanitarian law. Reflecting the international aspects of the conflicts, on 27 November1991 representatives of the Federal Republic of Yugoslavia, the Yugoslavia Peoples' Army, the Republicof Croatia, and the Republic of Serbia entered into an agreement on the implementation of the GenevaConventions of 1949 and the 1977 Additional Protocol I to those Conventions. (See Memorandum ofUnderstanding, 27 November 1991.) Significantly, the parties refrained from making any mention ofcommon Article 3 of the Geneva Conventions, concerning non-international armed conflicts.

By contrast, an agreement reached on 22 May 1992 between the various factions of the conflict within theRepublic of Bosnia and Herzegovina reflects the internal aspects of the conflicts. The agreement wasbased on common Article 3 of the Geneva Conventions which, in addition to setting forth rules governinginternal conflicts, provides in paragraph 3 that the parties to such conflicts may agree to bring into forceprovisions of the Geneva Conventions that are generally applicable only in international armed conflicts.In the Agreement, the representatives of Mr. Alija Izetbegovic (President of the Republic of Bosnia andHerzegovina and the Party of Democratic Action), Mr. Radovan Karadzic (President of the SerbianDemocratic Party), and Mr. Miljenko Brkic (President of the Croatian Democratic Community)committed the parties to abide by the substantive rules of internal armed conflict contained in commonArticle 3 and in addition agreed, on the strength of common Article 3, paragraph 3, to apply certainprovisions of the Geneva Conventions concerning international conflicts. (Agreement No. 1, 22 May1992, art. 2, paras. 1-6 (hereinafter Agreement No. 1).) Clearly, this Agreement shows that the partiesconcerned regarded the armed conflicts in which they were involved as internal but, in view of theirmagnitude, they agreed to extend to them the application of some provisions of the Geneva Conventionsthat are normally applicable in international armed conflicts only. The same position was implicitly takenby the International Committee of the Red Cross ("ICRC"), at whose invitation and under whose auspicesthe agreement was reached. In this connection it should be noted that, had the ICRC not believed that theconflicts governed by the agreement at issue were internal, it would have acted blatantly contrary to acommon provision of the four Geneva Conventions (Article 6/6/6/7). This is a provision formally banningany agreement designed to restrict the application of the Geneva Conventions in case of internationalarmed conflicts. ("No special agreement shall adversely affect the situation of [the protected persons] asdefined by the present Convention, nor restrict the rights which it confers upon them." (GenevaConvention I, art. 6; Geneva Convention II, art. 6; Geneva Convention III, art. 6; Geneva Convention IV,art. 7.) If the conflicts were, in fact, viewed as international, for the ICRC to accept that they would begoverned only by common Article 3, plus the provisions contained in Article 2, paragraphs 1 to 6, of

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Agreement No. 1, would have constituted clear disregard of the aforementioned Geneva provisions. Onaccount of the unanimously recognized authority, competence and impartiality of the ICRC, as well as itsstatutory mission to promote and supervise respect for international humanitarian law, it is inconceivablethat, even if there were some doubt as to the nature of the conflict, the ICRC would promote and endorsean agreement contrary to a basic provision of the Geneva Conventions. The conclusion is thereforewarranted that the ICRC regarded the conflicts governed by the agreement in question as internal.

Taken together, the agreements reached between the various parties to the conflict(s) in the formerYugoslavia bear out the proposition that, when the Security Council adopted the Statute of theInternational Tribunal in 1993, it did so with reference to situations that the parties themselves consideredat different times and places as either internal or international armed conflicts, or as a mixed internal-international conflict.

74. The Security Council's many statements leading up to the establishment of the International Tribunalreflect an awareness of the mixed character of the conflicts. On the one hand, prior to creating theInternational Tribunal, the Security Council adopted several resolutions condemning the presence of JNAforces in Bosnia-Herzegovina and Croatia as a violation of the sovereignty of these latter States. See, e.g.,S.C. Res. 752 (15 May 1992); S.C.Res. 757 (30 May 1992); S.C. Res. 779 (6 Oct. 1992); S.C. Res. 787(16 Nov. 1992). On the other hand, in none of these many resolutions did the Security Council explicitlystate that the conflicts were international.

In each of its successive resolutions, the Security Council focused on the practices with which it wasconcerned, without reference to the nature of the conflict. For example, in resolution 771 of 13 August1992, the Security Council expressed "grave alarm" at the

"[c]ontinuing reports of widespread violations of international humanitarian law occurring withinthe territory of the former Yugoslavia and especially in Bosnia and Herzegovina including reportsof mass forcible expulsion and deportation of civilians, imprisonment and abuse of civilians indetention centres, deliberate attacks on non-combatants, hospitals and ambulances, impeding thedelivery of food and medical supplies to the civilian population, and wanton devastation anddestruction of property." (S.C. Res. 771 (13 August 1992).)

As with every other Security Council statement on the subject, this resolution makes no mention of thenature of the armed conflict at issue. The Security Council was clearly preoccupied with bringing tojustice those responsible for these specifically condemned acts, regardless of context. The Prosecutormakes much of the Security Council's repeated reference to the grave breaches provisions of the GenevaConventions, which are generally deemed applicable only to international armed conflicts. This argumentignores, however, that, as often as the Security Council has invoked the grave breaches provisions, it hasalso referred generally to "other violations of international humanitarian law," an expression which coversthe law applicable in internal armed conflicts as well.

75. The intent of the Security Council to promote a peaceful solution of the conflict without pronouncingupon the question of its international or internal nature is reflected by the Report of the Secretary-Generalof 3 May 1993 and by statements of Security Council members regarding their interpretation of theStatute. The Report of the Secretary-General explicitly states that the clause of the Statute concerning thetemporal jurisdiction of the International Tribunal was

"clearly intended to convey the notion that no judgement as to the international or internal characterof the conflict was being exercised." (Report of the Secretary-General, at para. 62, U.N. Doc.S/25704 (3 May 1993) (hereinafter Report of the Secretary-General).)

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In a similar vein, at the meeting at which the Security Council adopted the Statute, three membersindicated their understanding that the jurisdiction of the International Tribunal under Article 3, withrespect to laws or customs of war, included any humanitarian law agreement in force in the formerYugoslavia. (See statements by representatives of France, the United States, and the United Kingdom,Provisional Verbatim Record of the 3217th Meeting, at 11, 15, & 19, U.N. Doc. S/PV.3217 (25 May1993).) As an example of such supplementary agreements, the United States cited the rules on internalarmed conflict contained in Article 3 of the Geneva Conventions as well as "the 1977 AdditionalProtocols to these [Geneva] Conventions [of 1949]." (Id. at 15). This reference clearly embracesAdditional Protocol II of 1977, relating to internal armed conflict. No other State contradicted thisinterpretation, which clearly reflects an understanding of the conflict as both internal and international (itshould be emphasized that the United States representative, before setting out the American views on theinterpretation of the Statute of the International Tribunal, pointed out: "[W]e understand that othermembers of the [Security] Council share our view regarding the following clarifications related to theStatute."(id.)).

76. That the Security Council purposely refrained from classifying the armed conflicts in the formerYugoslavia as either international or internal and, in particular, did not intend to bind the InternationalTribunal by a classification of the conflicts as international, is borne out by a reductio ad absurdumargument. If the Security Council had categorized the conflict as exclusively international and, inaddition, had decided to bind the International Tribunal thereby, it would follow that the InternationalTribunal would have to consider the conflict between Bosnian Serbs and the central authorities of Bosnia-Herzegovina as international. Since it cannot be contended that the Bosnian Serbs constitute a State,arguably the classification just referred to would be based on the implicit assumption that the BosnianSerbs are acting not as a rebellious entity but as organs or agents of another State, the Federal Republic ofYugoslavia (Serbia-Montenegro). As a consequence, serious infringements of international humanitarianlaw committed by the government army of Bosnia-Herzegovina against Bosnian Serbian civilians in theirpower would not be regarded as "grave breaches", because such civilians, having the nationality ofBosnia-Herzegovina, would not be regarded as "protected persons" under Article 4, paragraph 1 ofGeneva Convention IV. By contrast, atrocities committed by Bosnian Serbs against Bosnian civilians intheir hands would be regarded as "grave breaches", because such civilians would be "protected persons"under the Convention, in that the Bosnian Serbs would be acting as organs or agents of another State, theFederal Republic of Yugoslavia (Serbia-Montenegro) of which the Bosnians would not possess thenationality. This would be, of course, an absurd outcome, in that it would place the Bosnian Serbs at asubstantial legal disadvantage vis-à-vis the central authorities of Bosnia-Herzegovina. This absurditybears out the fallacy of the argument advanced by the Prosecutor before the Appeals Chamber.

77. On the basis of the foregoing, we conclude that the conflicts in the former Yugoslavia have bothinternal and international aspects, that the members of the Security Council clearly had both aspects of theconflicts in mind when they adopted the Statute of the International Tribunal, and that they intended toempower the International Tribunal to adjudicate violations of humanitarian law that occurred in eithercontext. To the extent possible under existing international law, the Statute should therefore be construedto give effect to that purpose.

78. With the exception of Article 5 dealing with crimes against humanity, none of the statutory provisionsmakes explicit reference to the type of conflict as an element of the crime; and, as will be shown below,the reference in Article 5 is made to distinguish the nexus required by the Statute from the nexus requiredby Article 6 of the London Agreement of 8 August 1945 establishing the International Military Tribunalat Nuremberg. Since customary international law no longer requires any nexus between crimes againsthumanity and armed conflict (see below, paras. 140 and 141), Article 5 was intended to reintroduce thisnexus for the purposes of this Tribunal. As previously noted, although Article 2 does not explicitly referto the nature of the conflicts, its reference to the grave breaches provisions suggest that it is limited to

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international armed conflicts. It would however defeat the Security Council's purpose to read a similarinternational armed conflict requirement into the remaining jurisdictional provisions of the Statute.Contrary to the drafters' apparent indifference to the nature of the underlying conflicts, such aninterpretation would authorize the International Tribunal to prosecute and punish certain conduct in aninternational armed conflict, while turning a blind eye to the very same conduct in an internal armedconflict. To illustrate, the Security Council has repeatedly condemned the wanton devastation anddestruction of property, which is explicitly punishable only under Articles 2 and 3 of the Statute.Appellant maintains that these Articles apply only to international armed conflicts. However, it wouldhave been illogical for the drafters of the Statute to confer on the International Tribunal the competence toadjudicate the very conduct about which they were concerned, only in the event that the context was aninternational conflict, when they knew that the conflicts at issue in the former Yugoslavia could have beenclassified, at varying times and places, as internal, international, or both.

Thus, the Security Council's object in enacting the Statute - to prosecute and punish persons responsiblefor certain condemned acts being committed in a conflict understood to contain both internal andinternational aspects - suggests that the Security Council intended that, to the extent possible, the subject-matter jurisdiction of the International Tribunal should extend to both internal and international armedconflicts.

In light of this understanding of the Security Council's purpose in creating the International Tribunal, weturn below to discussion of Appellant's specific arguments regarding the scope of the jurisdiction of theInternational Tribunal under Articles 2, 3 and 5 of the Statute.

3. Logical And Systematic Interpretation Of The Statute

(a) Article 2

79. Article 2 of the Statute of the International Tribunal provides:

"The International Tribunal shall have the power to prosecute persons committing or ordering to becommitted grave breaches of the Geneva Conventions of 12 August 1949, namely the followingacts against persons or property protected under the provisions of the relevant Geneva Convention:

(a) wilful killing;

(b) torture or 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 andcarried 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."

By its explicit terms, and as confirmed in the Report of the Secretary-General, this Article of the Statute isbased on the Geneva Conventions of 1949 and, more specifically, the provisions of those Conventions

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relating to "grave breaches" of the Conventions. Each of the four Geneva Conventions of 1949 contains a"grave breaches" provision, specifying particular breaches of the Convention for which the HighContracting Parties have a duty to prosecute those responsible. In other words, for these specific acts, theConventions create universal mandatory criminal jurisdiction among contracting States. Although thelanguage of the Conventions might appear to be ambiguous and the question is open to some debate (see,e.g.,[Amicus Curiae] Submission of the Government of the United States of America Concerning CertainArguments Made by Counsel for the Accused in the Case of The Prosecutor of the Tribunal v. DusanTadic, 17 July 1995, (Case No. IT-94-1-T), at 35-6 (hereinafter, U.S. Amicus Curiae Brief), it is widelycontended that the grave breaches provisions establish universal mandatory jurisdiction only with respectto those breaches of the Conventions committed in international armed conflicts. Appellant argues that, asthe grave breaches enforcement system only applies to international armed conflicts, reference in Article 2of the Statute to the grave breaches provisions of the Geneva Conventions limits the InternationalTribunal's jurisdiction under that Article to acts committed in the context of an international armedconflict. The Trial Chamber has held that Article 2:

"[H]as been so drafted as to be self-contained rather than referential, save for the identification ofthe victims of enumerated acts; that identification and that alone involves going to the Conventionsthemselves for the definition of 'persons or property protected'."

[. . . ]

[T]he requirement of international conflict does not appear on the face of Article 2. Certainly,nothing in the words of the Article expressly require its existence; once one of the specified acts isallegedly committed upon a protected person the power of the International Tribunal to prosecutearises if the spatial and temporal requirements of Article 1 are met.

[. . . ]

[T]here is no ground for treating Article 2 as in effect importing into the Statute the whole of theterms of the Conventions, including the reference in common Article 2 of the Geneva Convention[sic] to international conflicts. As stated, Article 2 of the Statute is on its face, self-contained, savein relation to the definition of protected persons and things." (Decision at Trial, at paras. 49-51.)

80. With all due respect, the Trial Chamber's reasoning is based on a misconception of the grave breachesprovisions and the extent of their incorporation into the Statute of the International Tribunal. The gravebreaches system of the Geneva Conventions establishes a twofold system: there is on the one hand anenumeration of offences that are regarded so serious as to constitute "grave breaches"; closely bound upwith this enumeration a mandatory enforcement mechanism is set up, based on the concept of a duty and aright of all Contracting States to search for and try or extradite persons allegedly responsible for "gravebreaches." The international armed conflict element generally attributed to the grave breaches provisionsof the Geneva Conventions is merely a function of the system of universal mandatory jurisdiction thatthose provisions create. The international armed conflict requirement was a necessary limitation on thegrave breaches system in light of the intrusion on State sovereignty that such mandatory universaljurisdiction represents. State parties to the 1949 Geneva Conventions did not want to give other Statesjurisdiction over serious violations of international humanitarian law committed in their internal armedconflicts - at least not the mandatory universal jurisdiction involved in the grave breaches system.

81. The Trial Chamber is right in implying that the enforcement mechanism has of course not beenimported into the Statute of the International Tribunal, for the obvious reason that the InternationalTribunal itself constitutes a mechanism for the prosecution and punishment of the perpetrators of "gravebreaches." However, the Trial Chamber has misinterpreted the reference to the Geneva Conventions

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contained in the sentence of Article 2: "persons or property protected under the provisions of the relevantGeneva Conventions." (Statute of the Tribunal, art. 2.) For the reasons set out above, this reference isclearly intended to indicate that the offences listed under Article 2 can only be prosecuted whenperpetrated against persons or property regarded as "protected" by the Geneva Conventions under thestrict conditions set out by the Conventions themselves. This reference in Article 2 to the notion of"protected persons or property" must perforce cover the persons mentioned in Articles 13, 24, 25 and 26(protected persons) and 19 and 33 to 35 (protected objects) of Geneva Convention I; in Articles 13, 36, 37(protected persons) and 22, 24, 25 and 27 (protected objects) of Convention II; in Article 4 of ConventionIII on prisoners of war; and in Articles 4 and 20 (protected persons) and Articles 18, 19, 21, 22, 33, 53, 57etc. (protected property) of Convention IV on civilians. Clearly, these provisions of the GenevaConventions apply to persons or objects protected only to the extent that they are caught up in aninternational armed conflict. By contrast, those provisions do not include persons or property comingwithin the purview of common Article 3 of the four Geneva Conventions.

82. The above interpretation is borne out by what could be considered as part of the preparatory works ofthe Statute of the International Tribunal, namely the Report of the Secretary-General. There, inintroducing and explaining the meaning and purport of Article 2 and having regard to the "gravebreaches" system of the Geneva Conventions, reference is made to "international armed conflicts" (Reportof the Secretary-General at para. 37).

83. We find that our interpretation of Article 2 is the only one warranted by the text of the Statute and therelevant provisions of the Geneva Conventions, as well as by a logical construction of their interplay asdictated by Article 2. However, we are aware that this conclusion may appear not to be consonant withrecent trends of both State practice and the whole doctrine of human rights - which, as pointed out below(see paras. 97-127), tend to blur in many respects the traditional dichotomy between international warsand civil strife. In this connection the Chamber notes with satisfaction the statement in the amicus curiaebrief submitted by the Government of the United States, where it is contended that:

"the 'grave breaches' provisions of Article 2 of the International Tribunal Statute apply to armedconflicts of a non-international character as well as those of an international character." (U.S.Amicus Curiae Brief, at 35.)

This statement, unsupported by any authority, does not seem to be warranted as to the interpretation ofArticle 2 of the Statute. Nevertheless, seen from another viewpoint, there is no gainsaying its significance:that statement articulates the legal views of one of the permanent members of the Security Council on adelicate legal issue; on this score it provides the first indication of a possible change in opinio juris ofStates. Were other States and international bodies to come to share this view, a change in customary lawconcerning the scope of the "grave breaches" system might gradually materialize. Other elements pointingin the same direction can be found in the provision of the German Military Manual mentioned below(para. 131), whereby grave breaches of international humanitarian law include some violations ofcommon Article 3. In addition, attention can be drawn to the Agreement of 1 October 1992 entered intoby the conflicting parties in Bosnia-Herzegovina. Articles 3 and 4 of this Agreement implicitly providefor the prosecution and punishment of those responsible for grave breaches of the Geneva Conventionsand Additional Protocol I. As the Agreement was clearly concluded within a framework of an internalarmed conflict (see above, para. 73), it may be taken as an important indication of the present trend toextend the grave breaches provisions to such category of conflicts. One can also mention a recentjudgement by a Danish court. On 25 November 1994 the Third Chamber of the Eastern Division of theDanish High Court delivered a judgement on a person accused of crimes committed together with anumber of Croatian military police on 5 August 1993 in the Croatian prison camp of Dretelj in Bosnia(The Prosecution v. Refik Saric, unpublished (Den.H. Ct. 1994)). The Court explicitly acted on the basisof the "grave breaches" provisions of the Geneva Conventions, more specifically Articles 129 and 130 of

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Convention III and Articles 146 and 147 of Convention IV (The Prosecution v. Refik Saric, Transcript, at1 (25 Nov. 1994)), without however raising the preliminary question of whether the alleged offences hadoccurred within the framework of an international rather than an internal armed conflict (in the event theCourt convicted the accused on the basis of those provisions and the relevant penal provisions of theDanish Penal Code, (see id. at 7-8)). This judgement indicates that some national courts are also takingthe view that the "grave breaches" system may operate regardless of whether the armed conflict isinternational or internal.

84. Notwithstanding the foregoing, the Appeals Chamber must conclude that, in the present state ofdevelopment of the law, Article 2 of the Statute only applies to offences committed within the context ofinternational armed conflicts.

85. Before the Trial Chamber, the Prosecutor asserted an alternative argument whereby the provisions ongrave breaches of the Geneva Conventions could be applied to internal conflicts on the strength of someagreements entered into by the conflicting parties. For the reasons stated below, in Section IV C (para.144), we find it unnecessary to resolve this issue at this time.

(b) Article 3

86. Article 3 of the Statute declares the International Tribunal competent to adjudicate violations of thelaws or customs of war. The provision states:

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

(a) 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, orbuildings;

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

(e) plunder of public or private property."

As explained by the Secretary-General in his Report on the Statute, this provision is based on the 1907Hague Convention (IV) Respecting the Laws and Customs of War on Land, the Regulations annexed tothat Convention, and the Nuremberg Tribunal's interpretation of those Regulations. Appellant argues thatthe Hague Regulations were adopted to regulate interstate armed conflict, while the conflict in the formerYugoslavia is in casu an internal armed conflict; therefore, to the extent that the jurisdiction of theInternational Tribunal under Article 3 is based on the Hague Regulations, it lacks jurisdiction underArticle 3 to adjudicate alleged violations in the former Yugoslavia. Appellant's argument does not bearclose scrutiny, for it is based on an unnecessarily narrow reading of the Statute.

(i) The Interpretation of Article 3

87. A literal interpretation of Article 3 shows that: (i) it refers to a broad category of offences, namely all"violations of the laws or customs of war"; and (ii) the enumeration of some of these violations providedin Article 3 is merely illustrative, not exhaustive.

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To identify the content of the class of offences falling under Article 3, attention should be drawn to animportant fact. The expression "violations of the laws or customs of war" is a traditional term of art usedin the past, when the concepts of "war" and "laws of warfare" still prevailed, before they were largelyreplaced by two broader notions: (i) that of "armed conflict", essentially introduced by the 1949 GenevaConventions; and (ii) the correlative notion of "international law of armed conflict", or the more recentand comprehensive notion of "international humanitarian law", which has emerged as a result of theinfluence of human rights doctrines on the law of armed conflict. As stated above, it is clear from theReport of the Secretary-General that the old-fashioned expression referred to above was used in Article 3of the Statute primarily to make reference to the 1907 Hague Convention (IV) Respecting the Laws andCustoms of War on Land and the Regulations annexed thereto (Report of the Secretary-General, at para.41). However, as the Report indicates, the Hague Convention, considered qua customary law, constitutesan important area of humanitarian international law. (Id.) In other words, the Secretary-General himselfconcedes that the traditional laws of warfare are now more correctly termed "international humanitarianlaw" and that the so-called "Hague Regulations" constitute an important segment of such law.Furthermore, the Secretary-General has also correctly admitted that the Hague Regulations have a broaderscope than the Geneva Conventions, in that they cover not only the protection of victims of armedviolence (civilians) or of those who no longer take part in hostilities (prisoners of war), the wounded andthe sick) but also the conduct of hostilities; in the words of the Report: "The Hague Regulations coveraspects of international humanitarian law which are also covered by the 1949 Geneva Conventions." (Id.,at para. 43.) These comments suggest that Article 3 is intended to cover both Geneva and Hague ruleslaw. On the other hand, the Secretary-General's subsequent comments indicate that the violationsexplicitly listed in Article 3 relate to Hague law not contained in the Geneva Conventions (id., at paras.43-4). As pointed out above, this list is, however, merely illustrative: indeed, Article 3, beforeenumerating the violations provides that they "shall include but not be limited to" the list of offences.Considering this list in the general context of the Secretary-General's discussion of the Hague Regulationsand international humanitarian law, we conclude that this list may be construed to include otherinfringements of international humanitarian law. The only limitation is that such infringements must notbe already covered by Article 2 (lest this latter provision should become superfluous). Article 3 may betaken to cover all violations of international humanitarian law other than the "grave breaches" of the fourGeneva Conventions falling under Article 2 (or, for that matter, the violations covered by Articles 4 and 5,to the extent that Articles 3, 4 and 5 overlap).

88. That Article 3 does not confine itself to covering violations of Hague law, but is intended also to referto all violations of international humanitarian law (subject to the limitations just stated), is borne out bythe debates in the Security Council that followed the adoption of the resolution establishing theInternational Tribunal. As mentioned above, three Member States of the Council, namely France, theUnited States and the United Kingdom, expressly stated that Article 3 of the Statute also coversobligations stemming from agreements in force between the conflicting parties, that is Article 3 commonto the Geneva Conventions and the two Additional Protocols, as well as other agreements entered into bythe conflicting parties. The French delegate stated that:

"[T]he expression 'laws or customs of war' used in Article 3 of the Statute covers specifically, in theopinion of France, all the obligations that flow from the humanitarian law agreements in force onthe territory of the former Yugoslavia at the time when the offences were committed." (ProvisionalVerbatim Record of the 3217th Meeting, at 11, U.N. Doc. S/PV.3217 (25 May 1993).)

The American delegate stated the following:

"[W]e understand that other members of the Council share our view regarding the followingclarifications related to the Statute:

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Firstly, it is understood that the 'laws or customs of war' referred to in Article 3 include allobligations under humanitarian law agreements in force in the territory of the former Yugoslavia atthe time the acts were committed, including common article 3 of the 1949 Geneva Conventions,and the 1977 Additional Protocols to these Conventions." (Id., at p. 15.)

The British delegate stated:

"[I]t would be our view that the reference to the laws or customs of war in Article 3 is broad enoughto include applicable international conventions." (Id., at p. 19.)

It should be added that the representative of Hungary stressed:

"the importance of the fact that the jurisdiction of the International Tribunal covers the whole rangeof international humanitarian law and the entire duration of the conflict throughout the territory ofthe former Yugoslavia." (Id., at p. 20.)

Since no delegate contested these declarations, they can be regarded as providing an authoritativeinterpretation of Article 3 to the effect that its scope is much broader than the enumerated violations ofHague law.

89. In light of the above remarks, it can be held that Article 3 is a general clause covering all violations ofhumanitarian law not falling under Article 2 or covered by Articles 4 or 5, more specifically: (i) violationsof the Hague law on international conflicts; (ii) infringements of provisions of the Geneva Conventionsother than those classified as "grave breaches" by those Conventions; (iii) violations of common Article 3and other customary rules on internal conflicts; (iv) violations of agreements binding upon the parties tothe conflict, considered qua treaty law, i.e., agreements which have not turned into customaryinternational law (on this point see below, para. 143).

90. The Appeals Chamber would like to add that, in interpreting the meaning and purport of theexpressions "violations of the laws or customs of war" or "violations of international humanitarian law",one must take account of the context of the Statute as a whole. A systematic construction of the Statuteemphasises the fact that various provisions, in spelling out the purpose and tasks of the InternationalTribunal or in defining its functions, refer to "serious violations" of international humanitarian law" (SeeStatute of the International Tribunal, Preamble, arts. 1, 9(1), 10(1)-(2), 23(1), 29(1) (Emphasis added.)). Itis therefore appropriate to take the expression "violations of the laws or customs of war" to cover seriousviolations of international humanitarian law.

91. Article 3 thus confers on the International Tribunal jurisdiction over any serious offence againstinternational humanitarian law not covered by Article 2, 4 or 5. Article 3 is a fundamental provisionlaying down that any "serious violation of international humanitarian law" must be prosecuted by theInternational Tribunal. In other words, Article 3 functions as a residual clause designed to ensure that noserious violation of international humanitarian law is taken away from the jurisdiction of the InternationalTribunal. Article 3 aims to make such jurisdiction watertight and inescapable.

92. This construction of Article 3 is also corroborated by the object and purpose of the provision. When itdecided to establish the International Tribunal, the Security Council did so to put a stop to all seriousviolations of international humanitarian law occurring in the former Yugoslavia and not only specialclasses of them, namely "grave breaches" of the Geneva Conventions or violations of the "Hague law."Thus, if correctly interpreted, Article 3 fully realizes the primary purpose of the establishment of theInternational Tribunal, that is, not to leave unpunished any person guilty of any such serious violation,whatever the context within which it may have been committed.

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93. The above interpretation is further confirmed if Article 3 is viewed in its more general perspective,that is to say, is appraised in its historical context. As the International Court of Justice stated in theNicaragua case, Article 1 of the four Geneva Conventions, whereby the contracting parties "undertake torespect and ensure respect" for the Conventions "in all circumstances", has become a "general principle [.. .] of humanitarian law to which the Conventions merely give specific expression." (Case ConcerningMilitary and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.) (Merits), 1986 I.C.J.Reports 14, at para. 220 (27 June) (hereinafter Nicaragua Case). This general principle lays down anobligation that is incumbent, not only on States, but also on other international entities including theUnited Nations. It was with this obligation in mind that, in 1977, the States drafting the two AdditionalProtocols to the Geneva Conventions agreed upon Article 89 of Protocol I, whereby:

"In situations of serious violations of the Conventions or of this Protocol, the High ContractingParties undertake to act, jointly or individually, in co-operation with the United Nations and inconformity with the United Nations Charter." (Protocol I, at art. 89 (Emphasis added).)

Article 3 is intended to realise that undertaking by endowing the International Tribunal with the power toprosecute all "serious violations" of international humanitarian law.

(ii) The Conditions That Must Be Fulfilled For A Violation Of International Humanitarian Law ToBe Subject To Article 3

94. The Appeals Chamber deems it fitting to specify the conditions to be fulfilled for Article 3 to becomeapplicable. The following requirements must be met for an offence to be subject to prosecution before theInternational Tribunal under Article 3:

(i) the violation must constitute an infringement of a rule of international humanitarian law;

(ii) the rule must be customary in nature or, if it belongs to treaty law, the required conditions mustbe met (see below, para. 143);

(iii) the violation must be "serious", that is to say, it must constitute a breach of a rule protectingimportant values, and the breach must involve grave consequences for the victim. Thus, forinstance, the fact of a combatant simply appropriating a loaf of bread in an occupied village wouldnot amount to a "serious violation of international humanitarian law" although it may be regarded asfalling foul of the basic principle laid down in Article 46, paragraph 1, of the Hague Regulations(and the corresponding rule of customary international law) whereby "private property must berespected" by any army occupying an enemy territory;

(iv) the violation of the rule must entail, under customary or conventional law, the individualcriminal responsibility of the person breaching the rule.

It follows that it does not matter whether the "serious violation" has occurred within the context of aninternational or an internal armed conflict, as long as the requirements set out above are met.

95. The Appeals Chamber deems it necessary to consider now two of the requirements set out above,namely: (i) the existence of customary international rules governing internal strife: and (ii) the question ofwhether the violation of such rules may entail individual criminal responsibility. The Appeals Chamberfocuses on these two requirements because before the Trial Chamber the Defence argued that they had notbeen met in the case at issue. This examination is also appropriate because of the paucity of authoritativejudicial pronouncements and legal literature on this matter.

(iii) Customary Rules of International Humanitarian Law Governing Internal Armed Conflicts

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a. General

96. Whenever armed violence erupted in the international community, in traditional international law thelegal response was based on a stark dichotomy: belligerency or insurgency. The former category appliedto armed conflicts between sovereign States (unless there was recognition of belligerency in a civil war),while the latter applied to armed violence breaking out in the territory of a sovereign State.Correspondingly, international law treated the two classes of conflict in a markedly different way:interstate wars were regulated by a whole body of international legal rules, governing both the conduct ofhostilities and the protection of persons not participating (or no longer participating) in armed violence(civilians, the wounded, the sick, shipwrecked, prisoners of war). By contrast, there were very fewinternational rules governing civil commotion, for States preferred to regard internal strife as rebellion,mutiny and treason coming within the purview of national criminal law and, by the same token, toexclude any possible intrusion by other States into their own domestic jurisdiction. This dichotomy wasclearly sovereignty-oriented and reflected the traditional configuration of the international community,based on the coexistence of sovereign States more inclined to look after their own interests thancommunity concerns or humanitarian demands.

97. Since the 1930s, however, the aforementioned distinction has gradually become more and moreblurred, and international legal rules have increasingly emerged or have been agreed upon to regulateinternal armed conflict. There exist various reasons for this development. First, civil wars have becomemore frequent, not only because technological progress has made it easier for groups of individuals tohave access to weaponry but also on account of increasing tension, whether ideological, inter-ethnic oreconomic; as a consequence the international community can no longer turn a blind eye to the legalregime of such wars. Secondly, internal armed conflicts have become more and more cruel and protracted,involving the whole population of the State where they occur: the all-out resort to armed violence hastaken on such a magnitude that the difference with international wars has increasingly dwindled (sufficeto think of the Spanish civil war, in 1936-39, of the civil war in the Congo, in 1960-1968, the Biafranconflict in Nigeria, 1967-70, the civil strife in Nicaragua, in 1981-1990 or El Salvador, 1980-1993).Thirdly, the large-scale nature of civil strife, coupled with the increasing interdependence of States in theworld community, has made it more and more difficult for third States to remain aloof: the economic,political and ideological interests of third States have brought about direct or indirect involvement of thirdStates in this category of conflict, thereby requiring that international law take greater account of theirlegal regime in order to prevent, as much as possible, adverse spill-over effects. Fourthly, the impetuousdevelopment and propagation in the international community of human rights doctrines, particularly afterthe adoption of the Universal Declaration of Human Rights in 1948, has brought about significant changesin international law, notably in the approach to problems besetting the world community. A State-sovereignty-oriented approach has been gradually supplanted by a human-being-oriented approach.Gradually the maxim of Roman law hominum causa omne jus constitutum est (all law is created for thebenefit of human beings) has gained a firm foothold in the international community as well. It follows thatin the area of armed conflict the distinction between interstate wars and civil wars is losing its value as faras human beings are concerned. Why protect civilians from belligerent violence, or ban rape, torture orthe wanton destruction of hospitals, churches, museums or private property, as well as proscribe weaponscausing unnecessary suffering when two sovereign States are engaged in war, and yet refrain fromenacting the same bans or providing the same protection when armed violence has erupted "only" withinthe territory of a sovereign State? If international law, while of course duly safeguarding the legitimateinterests of States, must gradually turn to the protection of human beings, it is only natural that theaforementioned dichotomy should gradually lose its weight.

98. The emergence of international rules governing internal strife has occurred at two different levels: atthe level of customary law and at that of treaty law. Two bodies of rules have thus crystallised, which areby no means conflicting or inconsistent, but instead mutually support and supplement each other. Indeed,

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the interplay between these two sets of rules is such that some treaty rules have gradually become part ofcustomary law. This holds true for common Article 3 of the 1949 Geneva Conventions, as wasauthoritatively held by the International Court of Justice (Nicaragua Case, at para. 218), but also appliesto Article 19 of the Hague Convention for the Protection of Cultural Property in the Event of ArmedConflict of 14 May 1954, and, as we shall show below (para. 117), to the core of Additional Protocol II of1977.

99. Before pointing to some principles and rules of customary law that have emerged in the internationalcommunity for the purpose of regulating civil strife, a word of caution on the law-making process in thelaw of armed conflict is necessary. When attempting To ascertain State practice with a view toestablishing the existence of a customary rule or a general principle, it is difficult, if not impossible, topinpoint the actual behaviour of the troops in the field for the purpose of establishing whether they in factcomply with, or disregard, certain standards of behaviour. This examination is rendered extremelydifficult by the fact that not only is access to the theatre of military operations normally refused toindependent observers (often even to the ICRC) but information on the actual conduct of hostilities iswithheld by the parties to the conflict; what is worse, often recourse is had to misinformation with a viewto misleading the enemy as well as public opinion and foreign Governments. In appraising the formationof customary rules or general principles one should therefore be aware that, on account of the inherentnature of this subject-matter, reliance must primarily be placed on such elements as officialpronouncements of States, military manuals and judicial decisions.

b. Principal Rules

100. The first rules that evolved in this area were aimed at protecting the civilian population from thehostilities. As early as the Spanish Civil War (1936-39), State practice revealed a tendency to disregardthe distinction between international and internal wars and to apply certain general principles ofhumanitarian law, at least to those internal conflicts that constituted large-scale civil wars. The SpanishCivil War had elements of both an internal and an international armed conflict. Significantly, both therepublican Government and third States refused to recognize the insurgents as belligerents. Theynonetheless insisted that certain rules concerning international armed conflict applied. Among rulesdeemed applicable were the prohibition of the intentional bombing of civilians, the rule forbidding attackson non-military objectives, and the rule regarding required precautions when attacking military objectives.Thus, for example, on 23 March 1938, Prime Minister Chamberlain explained the British protest againstthe bombing of Barcelona as follows:

"The rules of international law as to what constitutes a military objective are undefined and pendingthe conclusion of the examination of this question [. . .] I am not in a position to make anystatement on the subject. The one definite rule of international law, however, is that the direct anddeliberate bombing of non-combatants is in all circumstances illegal, and His Majesty'sGovernment's protest was based on information which led them to the conclusion that thebombardment of Barcelona, carried on apparently at random and without special aim at militaryobjectives, was in fact of this nature." (333 House of Commons Debates, col. 1177 (23 March1938).)

More generally, replying to questions by Member of Parliament Noel-Baker concerning the civil war inSpain, on 21 June 1938 the Prime Minister stated the following:

"I think we may say that there are, at any rate, three rules of international law or three principles ofinternational law which are as applicable to warfare from the air as they are to war at sea or on land.In the first place, it is against international law to bomb civilians as such and to make deliberateattacks upon civilian populations. That is undoubtedly a violation of international law. In the second

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place, targets which are aimed at from the air must be legitimate military objectives and must becapable of identification. In the third place, reasonable care must be taken in attacking thosemilitary objectives so that by carelessness a civilian population in the neighbourhood is notbombed." (337 House of Commons Debates, cols. 937-38 (21 June 1938).)

101. Such views were reaffirmed in a number of contemporaneous resolutions by the Assembly of theLeague of Nations, and in the declarations and agreements of the warring parties. For example, on 30September 1938, the Assembly of the League of Nations unanimously adopted a resolution concerningboth the Spanish conflict and the Chinese-Japanese war. After stating that "on numerous occasions publicopinion has expressed through the most authoritative channels its horror of the bombing of civilianpopulations" and that "this practice, for which there is no military necessity and which, as experienceshows, only causes needless suffering, is condemned under recognised principles of international law",the Assembly expressed the hope that an agreement could be adopted on the matter and went on to statethat it

"[r]ecognize[d] the following principles as a necessary basis for any subsequent regulations:

(1) The intentional bombing of civilian populations is illegal;(2) Objectives aimed at from the air must be legitimate military objectives and must be identifiable; (3) Any attack on legitimate military objectives must be carried out in such a way that civilianpopulations in the neighbourhood are not bombed through negligence." (League of Nations, O.J.Spec. Supp. 183, at 135-36 (1938).)

102. Subsequent State practice indicates that the Spanish Civil War was not exceptional in bringing aboutthe extension of some general principles of the laws of warfare to internal armed conflict. While the rulesthat evolved as a result of the Spanish Civil War were intended to protect civilians finding themselves inthe theatre of hostilities, rules designed to protect those who do not (or no longer) take part in hostilitiesemerged after World War II. In 1947, instructions were issued to the Chinese "peoples' liberation army"by Mao Tse-Tung who instructed them not to "kill or humiliate any of Chiang Kai-Shek's army officersand men who lay down their arms." (Manifesto of the Chinese People's Liberation Army, in Mao Tse-Tung, 4 Selected Works (1961) 147, at 151.) He also instructed the insurgents, among other things, not to"ill-treat captives", "damage crops" or "take liberties with women." (On the Reissue of the Three MainRules of Discipline and the Eight Points for Attention - Instruction of the General Headquarters of theChinese People's Liberation Army, in id., 155.)

In an important subsequent development, States specified certain minimum mandatory rules applicable tointernal armed conflicts in common Article 3 of the Geneva Conventions of 1949. The International Courtof Justice has confirmed that these rules reflect "elementary considerations of humanity" applicable undercustomary international law to any armed conflict, whether it is of an internal or international character.(Nicaragua Case, at para. 218). Therefore, at least with respect to the minimum rules in common Article3, the character of the conflict is irrelevant.

103. Common Article 3 contains not only the substantive rules governing internal armed conflict but alsoa procedural mechanism inviting parties to internal conflicts to agree to abide by the rest of the GenevaConventions. As in the current conflicts in the former Yugoslavia, parties to a number of internal armedconflicts have availed themselves of this procedure to bring the law of international armed conflicts intoforce with respect to their internal hostilities. For example, in the 1967 conflict in Yemen, both theRoyalists and the President of the Republic agreed to abide by the essential rules of the GenevaConventions. Such undertakings reflect an understanding that certain fundamental rules should applyregardless of the nature of the conflict.

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104. Agreements made pursuant to common Article 3 are not the only vehicle through which internationalhumanitarian law has been brought to bear on internal armed conflicts. In several cases reflectingcustomary adherence to basic principles in internal conflicts, the warring parties have unilaterallycommitted to abide by international humanitarian law.

105. As a notable example, we cite the conduct of the Democratic Republic of the Congo in its civil war.In a public statement issued on 21 October 1964, the Prime Minister made the following commitmentregarding the conduct of hostilities:

"For humanitarian reasons, and with a view to reassuring, in so far as necessary, the civilianpopulation which might fear that it is in danger, the Congolese Government wishes to state that theCongolese Air Force will limit its action to military objectives.

In this matter, the Congolese Government desires not only to protect human lives but also to respectthe Geneva Convention [sic]. It also expects the rebels - and makes an urgent appeal to them to thateffect - to act in the same manner.

As a practical measure, the Congolese Government suggests that International Red Cross observerscome to check on the extent to which the Geneva Convention [sic] is being respected, particularlyin the matter of the treatment of prisoners and the ban against taking hostages." (Public Statementof Prime Minister of the Democratic Republic of the Congo (21 Oct. 1964), reprinted in AmericanJournal of International Law (1965) 614, at 616.)

This statement indicates acceptance of rules regarding the conduct of internal hostilities, and, in particular,the principle that civilians must not be attacked. Like State practice in the Spanish Civil War, theCongolese Prime Minister's statement confirms the status of this rule as part of the customary law ofinternal armed conflicts. Indeed, this statement must not be read as an offer or a promise to undertakeobligations previously not binding; rather, it aimed at reaffirming the existence of such obligations andspelled out the notion that the Congolese Government would fully comply with them.

106. A further confirmation can be found in the "Operational Code of Conduct for Nigerian ArmedForces", issued in July 1967 by the Head of the Federal Military Government, Major General Y. Gowon,to regulate the conduct of military operations of the Federal Army against the rebels. In this "OperationalCode of Conduct", it was stated that, to repress the rebellion in Biafra, the Federal troops were duty-boundto respect the rules of the Geneva Conventions and in addition were to abide by a set of rules protectingcivilians and civilian objects in the theatre of military operations. (See A.H.M. Kirk-Greene, 1 Crisis andConflict in Nigeria, A Documentary Sourcebook 1966-1969, 455-57 (1971).) This "Operational Codeof Conduct" shows that in a large-scale and protracted civil war the central authorities, while refusing togrant recognition of belligerency, deemed it necessary to apply not only the provisions of the GenevaConventions designed to protect civilians in the hands of the enemy and captured combatants, but alsogeneral rules on the conduct of hostilities that are normally applicable in international conflicts. It shouldbe noted that the code was actually applied by the Nigerian authorities. Thus, for instance, it is reportedthat on 27 June 1968, two officers of the Nigerian Army were publicly executed by a firing squad inBenin City in Mid-Western Nigeria for the murder of four civilians near Asaba, (see New Nigerian, 28June 1968, at 1). In addition, reportedly on 3 September 1968, a Nigerian Lieutenant was court-martialled,sentenced to death and executed by a firing squad at Port-Harcourt for killing a rebel Biafran soldier whohad surrendered to Federal troops near Aba. (See Daily Times - Nigeria, 3 September 1968, at 1; DailyTimes, - Nigeria, 4 September 1968, at 1.)

This attitude of the Nigerian authorities confirms the trend initiated with the Spanish Civil War andreferred to above (see paras. 101-102), whereby the central authorities of a State where civil strife has

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broken out prefer to withhold recognition of belligerency but, at the same time, extend to the conflict thebulk of the body of legal rules concerning conflicts between States.

107. A more recent instance of this tendency can be found in the stand taken in 1988 by the rebels (theFMLN) in El Salvador, when it became clear that the Government was not ready to apply the AdditionalProtocol II it had previously ratified. The FMLN undertook to respect both common Article 3 andProtocol II:

"The FMLN shall ensure that its combat methods comply with the provisions of common Article 3of the Geneva Conventions and Additional Protocol II, take into consideration the needs of themajority of the population, and defend their fundamental freedoms." (FMLN, La legitimidad denuestros metodos de lucha, Secretaria de promocion y proteccion de lo Derechos Humanos delFMLN, El Salvador, 10 Octobre 1988, at 89; unofficial translation.)3

108. In addition to the behaviour of belligerent States, Governments and insurgents, other factors havebeen instrumental in bringing about the formation of the customary rules at issue. The Appeals Chamberwill mention in particular the action of the ICRC, two resolutions adopted by the United Nations GeneralAssembly, some declarations made by member States of the European Community (now EuropeanUnion), as well as Additional Protocol II of 1977 and some military manuals.

109. As is well known, the ICRC has been very active in promoting the development, implementation anddissemination of international humanitarian law. From the angle that is of relevance to us, namely theemergence of customary rules on internal armed conflict, the ICRC has made a remarkable contributionby appealing to the parties to armed conflicts to respect international humanitarian law. It is notable that,when confronted with non-international armed conflicts, the ICRC has promoted the application by thecontending parties of the basic principles of humanitarian law. In addition, whenever possible, it hasendeavoured to persuade the conflicting parties to abide by the Geneva Conventions of 1949 or at least bytheir principal provisions. When the parties, or one of them, have refused to comply with the bulk ofinternational humanitarian law, the ICRC has stated that they should respect, as a minimum, commonArticle 3. This shows that the ICRC has promoted and facilitated the extension of general principles ofhumanitarian law to internal armed conflict. The practical results the ICRC has thus achieved in inducingcompliance with international humanitarian law ought therefore to be regarded as an element of actualinternational practice; this is an element that has been conspicuously instrumental in the emergence orcrystallization of customary rules.

110. The application of certain rules of war in both internal and international armed conflicts iscorroborated by two General Assembly resolutions on "Respect of human rights in armed conflict." Thefirst one, resolution 2444, was unanimously4 adopted in 1968 by the General Assembly: "[r]ecognizingthe necessity of applying basic humanitarian principles in all armed conflicts," the General Assembly"affirm[ed]"

"the following principles for observance by all governmental and other authorities responsible foraction in armed conflict: (a) That the right of the parties to a conflict to adopt means of injuring theenemy is not unlimited; (b) That it is prohibited to launch attacks against the civilian populations assuch; (c) That distinction must be made at all times between persons taking part in the hostilitiesand members of the civilian population to the effect that the latter be spared as much as possible."(G.A. Res. 2444, U.N. GAOR., 23rd Session, Supp. No. 18 U.N. Doc. A/7218 (1968).)

It should be noted that, before the adoption of the resolution, the United States representative stated in theThird Committee that the principles proclaimed in the resolution "constituted a reaffirmation of existinginternational law" (U.N. GAOR, 3rd Comm., 23rd Sess., 1634th Mtg., at 2, U.N. Doc. A/C.3/SR.1634

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(1968)). This view was reiterated in 1972, when the United States Department of Defence pointed out thatthe resolution was "declaratory of existing customary international law" or, in other words, "a correctrestatement" of "principles of customary international law." (See 67 American Journal of InternationalLaw (1973), at 122, 124.)

111. Elaborating on the principles laid down in resolution 2444, in 1970 the General Assemblyunanimously5 adopted resolution 2675 on "Basic principles for the protection of civilian populations inarmed conflicts." In introducing this resolution, which it co-sponsored, to the Third Committee, Norwayexplained that as used in the resolution, "the term 'armed conflicts' was meant to cover armed conflicts ofall kinds, an important point, since the provisions of the Geneva Conventions and the Hague Regulationsdid not extend to all conflicts." (U.N. GAOR, 3rd Comm., 25th Sess., 1785th Mtg., at 281, U.N. Doc.A/C.3/SR.1785 (1970); see also U.N. GAOR, 25th Sess., 1922nd Mtg., at 3, U.N. Doc. A/PV.1922 (1970)(statement of the representative of Cuba during the Plenary discussion of resolution 2675).)The resolutionstated the following:

"Bearing in mind the need for measures to ensure the better protection of human rights in armedconflicts of all types, [. . . the General Assembly] Affirms the following basic principles for theprotection of civilian populations in armed conflicts, without prejudice to their future elaborationwithin the framework of progressive development of the international law of armed conflict:

1. Fundamental human rights, as accepted in international law and laid down in internationalinstruments, continue to apply fully in situations of armed conflict.

2. In the conduct of military operations during armed conflicts, a distinction must be made at alltimes between persons actively taking part in the hostilities and civilian populations.

3. In the conduct of military operations, every effort should be made to spare civilian populationsfrom the ravages of war, and all necessary precautions should be taken to avoid injury, loss ordamage to civilian populations.

4. Civilian populations as such should not be the object of military operations.

5. Dwellings and other installations that are used only by civilian populations should not be theobject of military operations.

6. Places or areas designated for the sole protection of civilians, such as hospital zones or similarrefuges, should not be the object of military operations.

7. Civilian populations, or individual members thereof, should not be the object of reprisals,forcible transfers or other assaults on their integrity.

8. The provision of international relief to civilian populations is in conformity with thehumanitarian principles of the Charter of the United Nations, the Universal Declaration of HumanRights and other international instruments in the field of human rights. The Declaration ofPrinciples for International Humanitarian Relief to the Civilian Population in Disaster Situations, aslaid down in resolution XXVI adopted by the twenty-first International Conference of the RedCross, shall apply in situations of armed conflict, and all parties to a conflict should make everyeffort to facilitate this application." (G.A. Res. 2675, U.N. GAOR., 25th Sess., Supp. No. 28 U.N.Doc. A/8028 (1970).)

112. Together, these resolutions played a twofold role: they were declaratory of the principles ofcustomary international law regarding the protection of civilian populations and property in armed

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conflicts of any kind and, at the same time, were intended to promote the adoption of treaties on thematter, designed to specify and elaborate upon such principles.

113. That international humanitarian law includes principles or general rules protecting civilians fromhostilities in the course of internal armed conflicts has also been stated on a number of occasions bygroups of States. For instance, with regard to Liberia, the (then) twelve Member States of the EuropeanCommunity, in a declaration of 2 August 1990, stated:

"In particular, the Community and its Member States call upon the parties in the conflict, inconformity with international law and the most basic humanitarian principles, to safeguard fromviolence the embassies and places of refuge such as churches, hospitals, etc., where defencelesscivilians have sought shelter." (6 European Political Cooperation Documentation Bulletin, at 295(1990).)

114. A similar, albeit more general, appeal was made by the Security Council in its resolution 788 (inoperative paragraph 5 it called upon "all parties to the conflict and all others concerned to respect strictlythe provisions of international humanitarian law") (S.C. Res. 788 (19 November 1992)), an appealreiterated in resolution 972 (S.C. Res. 972 (13 January 1995)) and in resolution 1001 (S.C. Res. 1001 (30June 1995)).

Appeals to the parties to a civil war to respect the principles of international humanitarian law were alsomade by the Security Council in the case of Somalia and Georgia. As for Somalia, mention can be madeof resolution 794 in which the Security Council in particular condemned, as a breach of internationalhumanitarian law, "the deliberate impeding of the delivery of food and medical supplies essential for thesurvival of the civilian population") (S.C. Res. 794 (3 December 1992)) and resolution 814 (S.C. Res. 814(26 March 1993)). As for Georgia, see Resolution 993, (in which the Security Council reaffirmed "theneed for the parties to comply with international humanitarian law") (S.C. Res. 993 (12 May 1993)).

115. Similarly, the now fifteen Member States of the European Union recently insisted on respect forinternational humanitarian law in the civil war in Chechnya. On 17 January 1995 the Presidency of theEuropean Union issued a declaration stating:

"The European Union is following the continuing fighting in Chechnya with the greatest concern.The promised cease-fires are not having any effect on the ground. Serious violations of humanrights and international humanitarian law are continuing. The European Union strongly deplores thelarge number of victims and the suffering being inflicted on the civilian population." (Council of theEuropean Union - General Secretariat, Press Release 4215/95 (Presse II-G), at 1 (17 January1995).)

The appeal was reiterated on 23 January 1995, when the European Union made the following declaration:

"It deplores the serious violations of human rights and international humanitarian law which are stilloccurring [in Chechnya]. It calls for an immediate cessation of the fighting and for the opening ofnegotiations to allow a political solution to the conflict to be found. It demands that freedom ofaccess to Chechnya and the proper convoying of humanitarian aid to the population be guaranteed."(Council of the European Union-General Secretariat, Press Release 4385/95 (Presse 24), at 1 (23January 1995).)

116. It must be stressed that, in the statements and resolutions referred to above, the European Union andthe United Nations Security Council did not mention common Article 3 of the Geneva Conventions, butadverted to "international humanitarian law", thus clearly articulating the view that there exists a corpus

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of general principles and norms on internal armed conflict embracing common Article 3 but having amuch greater scope.

117. Attention must also be drawn to Additional Protocol II to the Geneva Conventions. Many provisionsof this Protocol can now be regarded as declaratory of existing rules or as having crystallised emergingrules of customary law or else as having been strongly instrumental in their evolution as generalprinciples.

This proposition is confirmed by the views expressed by a number of States. Thus, for example, mentioncan be made of the stand taken in 1987 by El Salvador (a State party to Protocol II). After having beenrepeatedly invited by the General Assembly to comply with humanitarian law in the civil war raging onits territory (see, e.g., G.A. Res. 41/157 (1986)), the Salvadorian Government declared that, strictlyspeaking, Protocol II did not apply to that civil war (although an objective evaluation prompted someGovernments to conclude that all the conditions for such applications were met, (see, e.g., 43 AnnuaireSuisse de Droit International, (1987) at 185-87). Nevertheless, the Salvadorian Government undertookto comply with the provisions of the Protocol, for it considered that such provisions "developed andsupplemented" common Article 3, "which in turn constitute[d] the minimum protection due to everyhuman being at any time and place"(6) (See Informe de la Fuerza Armata de El Salvador sobre el respetoy la vigencia de las normas del Derecho Internacional Humanitario durante el periodo de Septiembre de1986 a Agosto de 1987, at 3 (31 August 1987) (forwarded by Ministry of Defence and Security of ElSalvador to Special Representative of the United Nations Human Rights Commission (2 October 1987),;(unofficial translation). Similarly, in 1987, Mr. M.J. Matheson, speaking in his capacity as Deputy LegalAdviser of the United States State Department, stated that:

"[T]he basic core of Protocol II is, of course, reflected in common article 3 of the 1949 GenevaConventions and therefore is, and should be, a part of generally accepted customary law. Thisspecifically includes its prohibitions on violence towards persons taking no active part in hostilities,hostage taking, degrading treatment, and punishment without due process" (Humanitarian LawConference, Remarks of Michael J. Matheson, (2) American University Journal of InternationalLaw and Policy (1987) 419, at 430-31).

118. That at present there exist general principles governing the conduct of hostilities (the so-called"Hague Law") applicable to international and internal armed conflicts is also borne out by nationalmilitary manuals. Thus, for instance, the German Military Manual of 1992 provides that:

Members of the German army, like their Allies, shall comply with the rules of internationalhumanitarian law in the conduct of military operations in all armed conflicts, whatever the nature ofsuch conflicts." (Humanitäres Völkerrecht in bewaffneten Konflikten - Handbuch, August 1992,DSK AV207320065, at para. 211 in fine; unofficial translation.)(7)

119. So far we have pointed to the formation of general rules or principles designed to protect civilians orcivilian objects from the hostilities or, more generally, to protect those who do not (or no longer) takeactive part in hostilities. We shall now briefly show how the gradual extension to internal armed conflictof rules and principles concerning international wars has also occurred as regards means and methods ofwarfare. As the Appeals Chamber has pointed out above (see para. 110), a general principle has evolvedlimiting the right of the parties to conflicts "to adopt means of injuring the enemy." The same holds truefor a more general principle, laid down in the so-called Turku Declaration of Minimum HumanitarianStandards of 1990, and revised in 1994, namely Article 5, paragraph 3, whereby "[w]eapons or othermaterial or methods prohibited in international armed conflicts must not be employed in anycircumstances." (Declaration of Minimum Humanitarian Standards, reprinted in, Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Forty-sixth Session,

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Commission on Human Rights, 51st Sess., Provisional Agenda Item 19, at 4, U.N. Doc. E/CN.4/1995/116(1995).) It should be noted that this Declaration, emanating from a group of distinguished experts inhuman rights and humanitarian law, has been indirectly endorsed by the Conference on Security andCooperation in Europe in its Budapest Document of 1994 (Conference on Security and Cooperation inEurope, Budapest Document 1994: Towards Genuine Partnership in a New Era, para. 34 (1994)) and in1995 by the United Nations Sub-Commission on Prevention of Discrimination and Protection ofMinorities (Report of the Sub-Commission on Prevention of Discrimination and Protection of Minoritieson its Forty-sixth Session, Commission on Human Rights, 51st Sess., Agenda Item 19, at 1, U.N. Doc.E/CN.4/1995/L.33 (1995)).

Indeed, elementary considerations of humanity and common sense make it preposterous that the use byStates of weapons prohibited in armed conflicts between themselves be allowed when States try to putdown rebellion by their own nationals on their own territory. What is inhumane, and consequentlyproscribed, in international wars, cannot but be inhumane and inadmissible in civil strife.

120. This fundamental concept has brought about the gradual formation of general rules concerningspecific weapons, rules which extend to civil strife the sweeping prohibitions relating to internationalarmed conflicts. By way of illustration, we will mention chemical weapons. Recently a number of Stateshave stated that the use of chemical weapons by the central authorities of a State against its ownpopulation is contrary to international law. On 7 September 1988 the [then] twelve Member States of theEuropean Community made a declaration whereby:

"The Twelve are greatly concerned at reports of the alleged use of chemical weapons against theKurds [by the Iraqi authorities]. They confirm their previous positions, condemning any use ofthese weapons. They call for respect of international humanitarian law, including the GenevaProtocol of 1925, and Resolutions 612 and 620 of the United Nations Security Council [concerningthe use of chemical weapons in the Iraq-Iran war]." (4 European Political CooperationDocumentation Bulletin, (1988) at 92.)

This statement was reiterated by the Greek representative, on behalf of the Twelve, on many occasions.(See U.N. GAOR, 1st Comm., 43rd Sess., 4th Mtg., at 47, U.N. Doc. A/C.1/43/PV.4 (1988)(statement of18 October 1988 in the First Committee of the General Assembly); U.N. GAOR, 1st Comm., 43rd Sess.,31st Mtg., at 23, U.N. Doc. A/C.1/43/PV.31 (statement of 9 November 1988 in meeting of FirstCommittee of the General Assembly to the effect inter alia that "The Twelve [. . .] call for respect for theGeneva Protocol of 1925 and other relevant rules of customary international law"); U.N. GAOR, 1stComm., 43rd Sess., 49th Mtg., at 16, U.N. Doc. A/C.3/43/SR.49 (summary of statement of 22 November1988 in Third Committee of the General Assembly); see also Report on European Union [EPC Aspects],4 European Political Cooperation Documentation Bulletin (1988), 325, at 330; Question No 362/88 byMr. Arbeloa Muru (S-E) Concerning the Poisoning of Opposition Members in Iraq, 4 European PoliticalCooperation Documentation Bulletin (1988), 187 (statement of the Presidency in response to a question ofa member of the European Parliament).)

121. A firm position to the same effect was taken by the British authorities: in 1988 the Foreign Officestated that the Iraqi use of chemical weapons against the civilian population of the town of Halabjarepresented "a serious and grave violation of the 1925 Geneva Protocol and international humanitarianlaw. The U.K. condemns unreservedly this and all other uses of chemical weapons." (59 BritishYearbook of International Law (1988) at 579; see also id. at 579-80.) A similar stand was taken by theGerman authorities. On 27 October 1988 the German Parliament passed a resolution whereby it"resolutely rejected the view that the use of poison gas was allowed on one's own territory and in clashesakin to civil wars, assertedly because it was not expressly prohibited by the Geneva Protocol of 1925"(8) .(50 Zeitschrift Für Ausländisches Öffentliches Recht Und Völkerrecht (1990), at 382-83; unofficial

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translation.) Subsequently the German representative in the General Assembly expressed Germany'salarm "about reports of the use of chemical weapons against the Kurdish population" and referred to"breaches of the Geneva Protocol of 1925 and other norms of international law." (U.N. GAOR, 1stComm., 43rd Sess., 31st Mtng., at 16, U.N. Doc. A/C.1/43/PV.31 (1988).)

122. A clear position on the matter was also taken by the United States Government. In a "press guidance"statement issued by the State Department on 9 September 1988 it was stated that:

Questions have been raised as to whether the prohibition in the 1925 Geneva Protocol against[chemical weapon] use 'in war' applies to [chemical weapon] use in internal conflicts. However, it isclear that such use against the civilian population would be contrary to the customary internationallaw that is applicable to internal armed conflicts, as well as other international agreements." (UnitedStates, Department of State, Press Guidance (9 September 1988).)

On 13 September 1988, Secretary of State George Schultz, in a hearing before the United States SenateJudiciary Committee strongly condemned as "completely unacceptable" the use of chemical weapons byIraq. (Hearing on Refugee Consultation with Witness Secretary of State George Shultz, 100th Cong., 2dSess., (13 September 1988) (Statement of Secretary of State Shultz).) On 13 October of the same year,Ambassador R.W. Murphy, Assistant Secretary for Near Eastern and South Asian Affairs, before the Sub-Committee on Europe and the Middle East of the House of Representatives Foreign Affairs Committeedid the same, branding that use as "illegal." (See Department of State Bulletin (December 1988) 41, at43-4.)

123. It is interesting to note that, reportedly, the Iraqi Government "flatly denied the poison gas charges."(New York Times, 16 September 1988, at A 11.) Furthermore, it agreed to respect and abide by therelevant international norms on chemical weapons. In the aforementioned statement, Ambassador Murphysaid:

"On September 17, Iraq reaffirmed its adherence to international law, including the 1925 GenevaProtocol on chemical weapons as well as other international humanitarian law. We welcomed thisstatement as a positive step and asked for confirmation that Iraq means by this to renounce the useof chemical weapons inside Iraq as well as against foreign enemies. On October 3, the Iraqi ForeignMinister confirmed this directly to Secretary Schultz." (Id. at 44.)

This information had already been provided on 20 September 1988 in a press conference by the StateDepartment spokesman Mr Redman. (See State Department Daily Briefing, 20 September 1988,Transcript ID: 390807, p. 8.) It should also be stressed that a number of countries (Turkey, Saudi Arabia,Egypt, Jordan, Bahrain, Kuwait) as well as the Arab League in a meeting of Foreign Ministers at Tunis on12 September 1988, strongly disagreed with United States' assertions that Iraq had used chemicalweapons against its Kurdish nationals. However, this disagreement did not turn on the legality of the useof chemical weapons; rather, those countries accused the United States of "conducting a smear mediacampaign against Iraq." (See New York Times, 15 September 1988, at A 13; Washington Post, 20September 1988, at A 21.)

124. It is therefore clear that, whether or not Iraq really used chemical weapons against its own Kurdishnationals - a matter on which this Chamber obviously cannot and does not express any opinion - thereundisputedly emerged a general consensus in the international community on the principle that the use ofthose weapons is also prohibited in internal armed conflicts.

125. State practice shows that general principles of customary international law have evolved with regardto internal armed conflict also in areas relating to methods of warfare. In addition to what has been stated

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above, with regard to the ban on attacks on civilians in the theatre of hostilities, mention can be made ofthe prohibition of perfidy. Thus, for instance, in a case brought before Nigerian courts, the Supreme Courtof Nigeria held that rebels must not feign civilian status while engaging in military operations. (See PiusNwaoga v. The State, 52 International Law Reports, 494, at 496-97 (Nig. S. Ct. 1972).)

126. The emergence of the aforementioned general rules on internal armed conflicts does not imply thatinternal strife is regulated by general international law in all its aspects. Two particular limitations may benoted: (i) only a number of rules and principles governing international armed conflicts have graduallybeen extended to apply to internal conflicts; and (ii) this extension has not taken place in the form of a fulland mechanical transplant of those rules to internal conflicts; rather, the general essence of those rules,and not the detailed regulation they may contain, has become applicable to internal conflicts. (On theseand other limitations of international humanitarian law governing civil strife, see the important messageof the Swiss Federal Council to the Swiss Chambers on the ratification of the two 1977 AdditionalProtocols (38 Annuaire Suisse de Droit International (1982) 137 at 145-49.))

127. Notwithstanding these limitations, it cannot be denied that customary rules have developed to governinternal strife. These rules, as specifically identified in the preceding discussion, cover such areas asprotection of civilians from hostilities, in particular from indiscriminate attacks, protection of civilianobjects, in particular cultural property, protection of all those who do not (or no longer) take active part inhostilities, as well as prohibition of means of warfare proscribed in international armed conflicts and banof certain methods of conducting hostilities.

(iv) Individual Criminal Responsibility In Internal Armed Conflict

128. Even if customary international law includes certain basic principles applicable to both internal andinternational armed conflicts, Appellant argues that such prohibitions do not entail individual criminalresponsibility when breaches are committed in internal armed conflicts; these provisions cannot,therefore, fall within the scope of the International Tribunal's jurisdiction. It is true that, for example,common Article 3 of the Geneva Conventions contains no explicit reference to criminal liability forviolation of its provisions. Faced with similar claims with respect to the various agreements andconventions that formed the basis of its jurisdiction, the International Military Tribunal at Nurembergconcluded that a finding of individual criminal responsibility is not barred by the absence of treatyprovisions on punishment of breaches. (See The Trial of Major War Criminals: Proceedings of theInternational Military Tribunal Sitting at Nuremberg Germany, Part 22, at 445, 467 (1950).) TheNuremberg Tribunal considered a number of factors relevant to its conclusion that the authors ofparticular prohibitions incur individual responsibility: the clear and unequivocal recognition of the rulesof warfare in international law and State practice indicating an intention to criminalize the prohibition,including statements by government officials and international organizations, as well as punishment ofviolations by national courts and military tribunals (id., at 445-47, 467). Where these conditions are met,individuals must be held criminally responsible, because, as the Nuremberg Tribunal concluded:

[c]rimes against international law are committed by men, not by abstract entities, and only bypunishing individuals who commit such crimes can the provisions of international law be enforced."(id., at 447.)

129. Applying the foregoing criteria to the violations at issue here, we have no doubt that they entailindividual criminal responsibility, regardless of whether they are committed in internal or internationalarmed conflicts. Principles and rules of humanitarian law reflect "elementary considerations of humanity"widely recognized as the mandatory minimum for conduct in armed conflicts of any kind. No one candoubt the gravity of the acts at issue, nor the interest of the international community in their prohibition.

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130. Furthermore, many elements of international practice show that States intend to criminalize seriousbreaches of customary rules and principles on internal conflicts. As mentioned above, during the NigerianCivil War, both members of the Federal Army and rebels were brought before Nigerian courts and triedfor violations of principles of international humanitarian law (see paras. 106 and 125).

131. Breaches of common Article 3 are clearly, and beyond any doubt, regarded as punishable by theMilitary Manual of Germany (Humanitäres Völkerrecht in bewaffneten Konflikten - Handbuch,August 1992, DSK AV2073200065, at para. 1209)(unofficial translation), which includes among the"grave breaches of international humanitarian law", "criminal offences" against persons protected bycommon Article 3, such as "wilful killing, mutilation, torture or inhumane treatment including biologicalexperiments, wilfully causing great suffering, serious injury to body or health, taking of hostages", as wellas "the fact of impeding a fair and regular trial"(9) . (Interestingly, a previous edition of the GermanMilitary Manual did not contain any such provision. See Kriegsvölkerrecht - Allgemeine Bestimmungendes Kriegführungsrechts und Landkriegsrecht, ZDv 15-10, March 1961, para. 12; Kriegsvölkerrecht -Allgemeine Bestimmungen des Humanitätsrechts, ZDv 15/5, August 1959, paras. 15-16, 30-2).Furthermore, the "Interim Law of Armed Conflict Manual" of New Zealand, of 1992, provides that "whilenon-application [i.e. breaches of common Article 3] would appear to render those responsible liable totrial for 'war crimes', trials would be held under national criminal law, since no 'war' would be inexistence" (New Zealand Defence Force Directorate of Legal Services, DM (1992) at 112, Interim Law ofArmed Conflict Manual, para. 1807, 8). The relevant provisions of the manual of the United States(Department of the Army, The Law of Land Warfare, Department of the Army Field Manual, FM 27-10,(1956), at paras. 11 & 499) may also lend themselves to the interpretation that "war crimes", i.e., "everyviolation of the law of war", include infringement of common Article 3. A similar interpretation might beplaced on the British Manual of 1958 (War Office, The Law of War on Land, Being Part III of the Manualof Military Law (1958), at para. 626).

132. Attention should also be drawn to national legislation designed to implement the GenevaConventions, some of which go so far as to make it possible for national courts to try persons responsiblefor violations of rules concerning internal armed conflicts. This holds true for the Criminal Code of theSocialist Federal Republic of Yugoslavia, of 1990, as amended for the purpose of making the 1949Geneva Conventions applicable at the national criminal level. Article 142 (on war crimes against thecivilian population) and Article 143 (on war crimes against the wounded and the sick) expressly apply "atthe time of war, armed conflict or occupation"; this would seem to imply that they also apply to internalarmed conflicts. (Socialist Federal Republic of Yugoslavia, Federal Criminal Code, arts. 142-43 (1990).)(It should be noted that by a decree having force of law, of 11 April 1992, the Republic of Bosnia andHerzegovina has adopted that Criminal Code, subject to some amendments.) (2 Official Gazette of theRepublic of Bosnia and Herzegovina 98 (11 April 1992)(translation).) Furthermore, on 26 December1978 a law was passed by the Yugoslav Parliament to implement the two Additional Protocols of 1977(Socialist Federal Republic of Yugoslavia, Law of Ratification of the Geneva Protocols, MedunarodniUgovori, at 1083 (26 December 1978).) as a result, by virtue of Article 210 of the Yugoslav Constitution,those two Protocols are "directly applicable" by the courts of Yugoslavia. (Constitution of the SocialistFederal Republic of Yugoslavia, art. 210.) Without any ambiguity, a Belgian law enacted on 16 June 1993for the implementation of the 1949 Geneva Conventions and the two Additional Protocols provides thatBelgian courts have jurisdiction to adjudicate breaches of Additional Protocol II to the GenevaConventions relating to victims of non-international armed conflicts. Article 1 of this law provides that aseries of "grave breaches" (infractions graves) of the four Geneva Conventions and the two AdditionalProtocols, listed in the same Article 1, "constitute international law crimes" ([c]onstituent des crimes dedroit international) within the jurisdiction of Belgian criminal courts (Article 7). (Loi du 16 juin 1993relative à la répression des infractions graves aux Conventions internationales de Genève du 12 août1949 et aux Protocoles I et II du 8 juin 1977, additionnels à ces Conventions, Moniteur Belge, (5 August1993).)

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133. Of great relevance to the formation of opinio juris to the effect that violations of general internationalhumanitarian law governing internal armed conflicts entail the criminal responsibility of those committingor ordering those violations are certain resolutions unanimously adopted by the Security Council. Thus,for instance, in two resolutions on Somalia, where a civil strife was under way, the Security Councilunanimously condemned breaches of humanitarian law and stated that the authors of such breaches orthose who had ordered their commission would be held "individually responsible" for them. (See S.C.Res. 794 (3 December 1992); S.C. Res. 814 (26 March 1993).)

134. All of these factors confirm that customary international law imposes criminal liability for seriousviolations of common Article 3, as supplemented by other general principles and rules on the protectionof victims of internal armed conflict, and for breaching certain fundamental principles and rules regardingmeans and methods of combat in civil strife.

135. It should be added that, in so far as it applies to offences committed in the former Yugoslavia, thenotion that serious violations of international humanitarian law governing internal armed conflicts entailindividual criminal responsibility is also fully warranted from the point of view of substantive justice andequity. As pointed out above (see para. 132) such violations were punishable under the Criminal Code ofthe Socialist Federal Republic of Yugoslavia and the law implementing the two Additional Protocols of1977. The same violations have been made punishable in the Republic of Bosnia and Herzegovina byvirtue of the decree-law of 11 April 1992. Nationals of the former Yugoslavia as well as, at present, thoseof Bosnia-Herzegovina were therefore aware, or should have been aware, that they were amenable to thejurisdiction of their national criminal courts in cases of violation of international humanitarian law.

136. It is also fitting to point out that the parties to certain of the agreements concerning the conflict inBosnia-Herzegovina, made under the auspices of the ICRC, clearly undertook to punish those responsiblefor violations of international humanitarian law. Thus, Article 5, paragraph 2, of the aforementionedAgreement of 22 May 1992 provides that:

"Each party undertakes, when it is informed, in particular by the ICRC, of any allegation ofviolations of international humanitarian law, to open an enquiry promptly and pursue itconscientiously, and to take the necessary steps to put an end to the alleged violations or preventtheir recurrence and to punish those responsible in accordance with the law in force." (Agreement No. 1, art. 5, para. 2 (Emphasis added).)

Furthermore, the Agreement of 1st October 1992 provides in Article 3, paragraph 1, that

"All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Lawas defined in Article 50 of the First, Article 51 of the Second, Article 130 of the Third and Article147 of the Fourth Geneva Convention, as well as in Article 85 of Additional Protocol I, will beunilaterally and unconditionally released." (Agreement No. 2, 1 October 1992, art. 3, para. 1.)

This provision, which is supplemented by Article 4, paragraphs 1 and 2 of the Agreement, implies that allthose responsible for offences contrary to the Geneva provisions referred to in that Article must bebrought to trial. As both Agreements referred to in the above paragraphs were clearly intended to apply inthe context of an internal armed conflict, the conclusion is warranted that the conflicting parties in Bosnia-Herzegovina had clearly agreed at the level of treaty law to make punishable breaches of internationalhumanitarian law occurring within the framework of that conflict.

(v) Conclusion

137. In the light of the intent of the Security Council and the logical and systematic interpretation of

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Article 3 as well as customary international law, the Appeals Chamber concludes that, under Article 3, theInternational Tribunal has jurisdiction over the acts alleged in the indictment, regardless of whether theyoccurred within an internal or an international armed conflict. Thus, to the extent that Appellant'schallenge to jurisdiction under Article 3 is based on the nature of the underlying conflict, the motion mustbe denied.

(c) Article 5

138. Article 5 of the Statute confers jurisdiction over crimes against humanity. More specifically, theArticle provides:

"The International Tribunal shall have the power to prosecute persons responsible for the followingcrimes when committed in armed conflict, whether international or internal in character, anddirected against any civilian population:

(a) murder;

(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

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

(i) other inhumane acts."

As noted by the Secretary-General in his Report on the Statute, crimes against humanity were firstrecognized in the trials of war criminals following World War II. (Report of the Secretary-General, atpara. 47.) The offence was defined in Article 6, paragraph 2(c) of the Nuremberg Charter andsubsequently affirmed in the 1948 General Assembly Resolution affirming the Nuremberg principles.

139. Before the Trial Chamber, Counsel for Defence emphasized that both of these formulations of thecrime limited it to those acts committed "in the execution of or in connection with any crime against peaceor any war crime." He argued that this limitation persists in contemporary international law andconstitutes a requirement that crimes against humanity be committed in the context of an internationalarmed conflict (which assertedly was missing in the instant case). According to Counsel for Defence,jurisdiction under Article 5 over crimes against humanity "committed in armed conflict, whetherinternational or internal in character" constitutes an ex post facto law violating the principle of nullumcrimen sine lege. Although before the Appeals Chamber the Appellant has forgone this argument (seeAppeal Transcript, 8 September 1995, at 45), in view of the importance of the matter this Chamber deemsit fitting to comment briefly on the scope of Article 5.

140. As the Prosecutor observed before the Trial Chamber, the nexus between crimes against humanityand either crimes against peace or war crimes, required by the Nuremberg Charter, was peculiar to thejurisdiction of the Nuremberg Tribunal. Although the nexus requirement in the Nuremberg Charter was

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carried over to the 1948 General Assembly resolution affirming the Nuremberg principles, there is nological or legal basis for this requirement and it has been abandoned in subsequent State practice withrespect to crimes against humanity. Most notably, the nexus requirement was eliminated from thedefinition of crimes against humanity contained in Article II(1)(c) of Control Council Law No. 10 of 20December 1945. (Control Council Law No. 10, Control Council for Germany, Official Gazette, 31January 1946, at p. 50.). The obsolescence of the nexus requirement is evidenced by internationalconventions regarding genocide and apartheid, both of which prohibit particular types of crimes againsthumanity regardless of any connection to armed conflict. (Convention on the Prevention and Punishmentof the Crime of Genocide, 9 December 1948, art. 1, 78 U.N.T.S. 277, Article 1 (providing that genocide,"whether committed in time of peace or in time of war, is a crime under international law"); InternationalConvention on the Suppression and Punishment of the Crime of Apartheid, 30 November 1973, 1015U.N.T.S. 243, arts. 1-2Article . I(1)).

141. It is by now a settled rule of customary international law that crimes against humanity do not requirea connection to international armed conflict. Indeed, as the Prosecutor points out, customary internationallaw may not require a connection between crimes against humanity and any conflict at all. Thus, byrequiring that crimes against humanity be committed in either internal or international armed conflict, theSecurity Council may have defined the crime in Article 5 more narrowly than necessary under customaryinternational law. There is no question, however, that the definition of crimes against humanity adoptedby the Security Council in Article 5 comports with the principle of nullum crimen sine lege.

142. We conclude, therefore, that Article 5 may be invoked as a basis of jurisdiction over crimescommitted in either internal or international armed conflicts. In addition, for the reasons stated above, inSection IV A, (paras. 66-70), we conclude that in this case there was an armed conflict. Therefore, theAppellant's challenge to the jurisdiction of the International Tribunal under Article 5 must be dismissed.

C. May The International Tribunal Also Apply International Agreements Binding Upon TheConflicting Parties?

143. Before both the Trial Chamber and the Appeals Chamber, Defence and Prosecution have argued theapplication of certain agreements entered into by the conflicting parties. It is therefore fitting for thisChamber to pronounce on this. It should be emphasised again that the only reason behind the statedpurpose of the drafters that the International Tribunal should apply customary international law was toavoid violating the principle of nullum crimen sine lege in the event that a party to the conflict did notadhere to a specific treaty. (Report of the Secretary-General, at para. 34.) It follows that the InternationalTribunal is authorised to apply, in addition to customary international law, any treaty which: (i) wasunquestionably binding on the parties at the time of the alleged offence; and (ii) was not in conflict withor derogating from peremptory norms of international law, as are most customary rules of internationalhumanitarian law. This analysis of the jurisdiction of the International Tribunal is borne out by thestatements made in the Security Council at the time the Statute was adopted. As already mentioned above(paras. 75 and 88), representatives of the United States, the United Kingdom and France all agreed thatArticle 3 of the Statute did not exclude application of international agreements binding on the parties.(Provisional Verbatim Record, of the U.N.SCOR, 3217th Meeting., at 11, 15, 19, U.N. Doc. S/PV.3217(25 May 1993).).

144. We conclude that, in general, such agreements fall within our jurisdiction under Article 3 of theStatute. As the defendant in this case has not been charged with any violations of any specific agreement,we find it unnecessary to determine whether any specific agreement gives the International Tribunaljurisdiction over the alleged crimes.

145. For the reasons stated above, the third ground of appeal, based on lack of subject-matter jurisdiction,

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must be dismissed.

V. DISPOSITION

146. For the reasons hereinabove expressedandActing under Article 25 of the Statute and Rules 72, 116 bis and 117 of the Rules of Procedure andEvidence,

The Appeals Chamber

(1) By 4 votes to 1,

Decides that the International Tribunal is empowered to pronounce upon the plea challenging thelegality of the establishment of the International Tribunal.

IN FAVOUR: President Cassese, Judges Deschênes, Abi-Saab and Sidhwa

AGAINST: Judge Li

(2) Unanimously

Decides that the aforementioned plea is dismissed.

(3) Unanimously

Decides that the challenge to the primacy of the International Tribunal over national courts isdismissed.

(4) By 4 votes to 1

Decides that the International Tribunal has subject-matter jurisdiction over the current case.

IN FAVOUR: President Cassese, Judges Li, Deschênes, Abi-Saab

AGAINST: Judge Sidhwa

ACCORDINGLY, THE DECISION OF THE TRIAL CHAMBER OF 10 AUGUST 1995 STANDSREVISED, THE JURISDICTION OF THE INTERNATIONAL TRIBUNAL IS AFFIRMED ANDTHE APPEAL IS DISMISSED.

Done in English, this text being authoritative.*

(Signed) Antonio Cassese,President

Judges Li, Abi-Saab and Sidhwa append separate opinions to the Decision of the Appeals Chamber

Judge Deschênes appends a Declaration.

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(Initialled) A. C.

Dated this second day of October 1995The HagueThe Netherlands

[Seal of the Tribunal]

* French translation to follow

1 "Trattasi di norme [concernenti i reati contro le leggi e gli usi della guerra] che, per il loro contenuto altamente etico eumanitario, hanno carattere non territoriale, ma universale... Dalla solidarietà delle varie nazioni, intesa a lenire nel miglior modopossibile gli orrori della guerra, scaturisce la necessità di dettare disposizioni che non conoscano barriere, colpendo chi delinque,dovunque esso si trovi......[I] reati contro le leggi e gli usi della guerra non possono essere considerati delitti politici, poichè non offendono un interessepolitico di uno Stato determinato ovvero un diritto politico di un suo cittadino. Essi invece sono reati di lesa umanità, e, come si èprecedentemente dimostrato, le norme relative hanno carattere universale, e non semplicemente territoriale. Tali reati sono, diconseguenza, per il loro oggetto giuridico e per la loro particolare natura, proprio di specie opposta e diversa da quella dei delittipolitici. Questi, di norma, interessano solo lo Stato a danno del quale sono stati commessi, quelli invece interessano tutti gli Staticivili, e vanno combattuti e repressi, come sono combattuti e repressi il reato di pirateria, la tratta delle donne e dei minori, lariduzione in schiavitù, dovunque siano stati commessi." (art. 537 e 604 c. p.).Back

2 ."..[E]n raison de leur nature, les crimes contre l'humanité (...) ne relèvent pas seulement du droit interne français, mais encored'un ordre répressif international auquel la notion de frontière et les règles extraditionnelles qui en découlent sontfondamentalement étrangères." (6 octobre 1983, 88 Revue Générale de Droit international public, 1984, p. 509.)

3 "El FMLN procura que sus métodos de lucha cumplan con lo estipulado per el art’culo 3 comun a los Convenios de Ginebra y suProtocolo II Adicional, tomen en consideración las necesidades de la mayor’a de la población y estén orientados a defender suslibertades fundamentales."

4 The recorded vote on the resolution was 111 in favour and 0 against. After the vote was taken, however, Gabon represented thatit had intended to vote against the resolution. (U.N. GAOR, 23rd Sess., 1748th Mtg., at 7, 12, U.N.Doc. A/PV.1748 (1968)).

5 The recorded vote on the resolution was 109 in favour and 0 against, with 8 members abstaining. (U.N. GAOR, 1922nd Mtg., at12, U.N.Doc. A/PV.1922 (1970).)

6 "Dentro de esta l’nea de conducta, su mayor preocupación [de la Fuerza Armada] ha sido el mantenerse apegada estrictamente alcumplimiento de las disposiciones contenidas en los Convenios de Ginebra y en El Protocolo II de dichos Convenios, ya quea&uacuten no siendo el mismo aplicable a la situación que confronta actualmente el país, el Gobierno de El Salvador acata ycumple las disposiciones contenidas endicho instrumento, por considerar que ellas constituyen el desarrollo y la complementacióndel Art. 3, comœn a los Convenios de Ginebra del 12 de agosto de 1949, que a su vez representa la protección mínima que se debeal ser humano encualquier tiempo y lugar."Back

7 "Ebenso wie ihre Verbündeten beachten Soldaten der Bundeswehr die Regeln des humanitären Völkerrechts bei militärischenOperationen in allen bewaffneten Konflikten, gleichgültig welcher Art." Back

8 "Der Deutsche Bundestag befürchtet, dass Berichte zutreffend sein könnten, dass die irakischen Streitkräfte auf dem Territoriumdes Iraks nunmehr im Kampf mit kurdischen Aufständischen Giftgas eingesetzt haben. Er weist mit Entschiedenheit dieAuffassung zurück, dass der Einsatz von Giftgas im Innern und bei bürgerkriegsähnlichen Auseinandersetzungen zulässig sei, weiler durch das Genfer Protokoll von 1925 nicht ausdrücklich verboten werde..."Back

9 "1209. Schwere Verletzungen des humanitären Völkerrechts sind insbesondere; -Straftaten gegen geschützte Personen

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(Verwundete, Kranke, Sanitätspersonal, Militärgeistliche, Kriegsgefangene, Bewohner besetzter Gebiete, andere Zivilpersonen),wie vorsätzliche Tötung, Verstümmelung, Folterung oder unmenschliche Behandlung einschliesslich biologischer Versuche,vorsätzliche Verursachung grosser Leiden, schwere Beeinträchtingung der körperlichen Integrität oder Gesundheit, Geiselnahme(1 3, 49-51; 2 3, 50, 51; 3 3, 129, 130; 4 3, 146, 147; 5 11 Abs. 2, 85 Abs. 3 Buchst. a) [. . .]-Verhinderung eines unparteiischen ordentlichen Gerichtsverfahrens (1 3 Abs. 3 Buchst. d; 3 3 Abs. 1d; 5 85 Abs. 4 Buschst. e)."Back

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IN THE APPEALS CHAMBER

Before:Judge Cassese, PresidingJudge LiJudge DeschênesJudge Abi-SaabJudge Sidhwa

Registrar:Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:2 October 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_____________________________________

SEPARATE DECLARATION OF JUDGE J. DESCHÊNES ON THE DEFENCE MOTION FORINTERLOCUTORY APPEAL

ON JURISDICTION

_____________________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant NiemannMs. Brenda HollisMr. Alan TiegerMr. William FenrickMr. Michael Keegan

Counsel for the Accused:

Mr. Michail WladimiroffMr. Milan VujinMr. Alphons OrieMr. Krstan Simic

Declaration

1. I have taken part in the hearing of this appeal — the first one lodged before the Tribunal — as well asin the deliberations of the members of the Appeals Chamber and in the drafting of the Judgement. I am inagreement with the conclusions of the Appeals Chamber.

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2. As fully however do I find myself in disagreement with the single linguistic mould into which thisdecision has been cast. This offends two principles which should direct the Tribunal’s conduct:

a) the simultaneous publication of the English and French texts of the Judgements of the Tribunal;

b) the equally authoritative character of both texts.

3. Most regretfully both principles are breached to-day. The Appeals Chamber renders this Judgement inEnglish only, it endows this sole version with the character of authenticity and foresees that a non-authentic French version of its Judgement will be published at a later date. The Tribunal’s other languageis thus relegated to the role of a tool of questionable usefulness, contrary to the spirit and the letter of theinstruments which ought to guide the Tribunal’s action.

4. At the outset, the Charter of the United Nations provides that its five texts "are equally authentic" (art.111).

5. The Statute of the International Court of Justice, (The Hague), gives however to that Court, in thematter of Judgement, the option of "determin(ing) which of the two texts (English or French) shall beconsidered as authoritative" (art. 39.2). At least there must be two texts.

6. By its Resolution 827 (1993), the Security Council has adopted the Statute of this Tribunal. Withoutsettling directly the question, art.33 provides: "The working languages of the International Tribunal shallbe English and French."

7. At the very beginning of its work, the Tribunal considered the question; the more so since a pre-draft ofRules of Procedure and Evidence suggested that English be the only authoritative language in theTribunal. It was however moved that the relevant provision in the pre-draft be set aside and replaced bythe following:

"Authentic Texts

The English and French texts of the Rules shall be equally authentic. In case of discrepancy, theversion which is more consonant with the spirit of the Statute and the Rules shall prevail."

8. The judges of the Tribunal agreed to the motion unanimously and this provision is now our Rule 7.

9. From the Statute and the Rules of Procedure and Evidence, it manifestly appears that the English andFrench languages benefit of a status of equality in the Tribunal. This status however is not reflected in theTribunal’s recent jurisprudence.

10. Since 11 August 1994, the two Trial Chambers have rendered five Judgements. In the first three cases,the English and French texts have been filed simultaneously. This happy practice however has notcontinued: in the last two cases, the French version is still lacking. Even more ironically, in the presentcase the Judgement in appeal is issued while the Judgement at trial has not yet even been published inFrench!

11. So, a usage which has recently taken shape at the trial level is now legitimized in appeal. That processcreates an unacceptable situation against which I have lodged a protest, regretfully without success.

12. Yet other international Courts have found solutions to the problem. They however vary, dependingupon the functions and purposes of each Court.

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13. The Court of Justice of the European Communities (Luxembourg) must answer the requirements of noless than eleven official languages. The version of its Judgements which is authentic is established in thelanguage of the particular litigation, and it is accompanied on the same day by an official version in all theother languages recognized by the Court.

14. The European Court of Human Rights (Strasbourg) operates, as the Tribunal, in English and in Frenchand it renders Judgement simultaneously in those two languages. Up to about 1970, the Court designatedone of the two versions as authentic. But for the last quarter century, no such designation is made andboth versions appear to be considered as authentic.

15. The Organisation of American States has four official languages: English, French, Portuguese andSpanish. Its Court: The Inter-American Court of Human Rights (San José) has however only two: Spanishand English. By agreement with the Court, the parties choose one of these two languages for their caseand it is the text of the Judgement in that language which is authentic.The version in the other officiallanguage is published later; the delays, at times months, are irregular.

16. The Organisation of African Unity cannot provide useful examples, because of its lack of experiencein the judicial field. It is nonetheless interesting to know that it has added Kiswahili, in 1993, to its threeofficial languages: Arabic, French and English.

17. Thus it appears that the two above-mentioned principles: simultaneity and authenticity are honouredin decreasing order by Strasbourg, Luxembourg, The Hague and San José. It is this last example whichthe Tribunal follows today more closely.

18. In light of the Statutes, Rules, Regulations and best international usages, one cannot and should nottolerate, in this Tribunal, that the French speaking jurists must, either work in a language with which theyare less fluent, or risk to be scientifically overrun while awaiting an official text to which they are entitled.

19. One hopes that, within a suitably improved budget, the Tribunal will find without delay the means ofclimbing forward from San José to Strasbourg, thus to solve this problem. Otherwise some might call it aninjustice.

___________________Signed: Judge Jules Deschênes2nd October 1995

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IN THE APPEALS CHAMBER

Before: Judge Cassese, Presiding

Judge Li

Judge Deschênes

Judge Abi-Saab

Judge Sidhwa

Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of: 2 October 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_____________________________________

SEPARATE OPINION OF JUDGE SIDHWA ON THE DEFENCE MOTION

FOR INTERLOCUTORY APPEAL ON JURISDICTION

_____________________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant NiemannMs. Brenda HollisMr. Alan TiegerMr. William FenrickMr. Michael Keegan

Counsel for the Accused:

Mr. Michail WladimiroffMr. Milan VujinMr. Alphons OrieMr. Krstan Simic

1. The majority judgement of the Court is well founded, the subject of intensive research and the productof great labour. I would very much like to sign it and give myself the honour of being a co-author, butwhilst agreeing on most of the conclusions, I wish to record my separate opinion, not unmindful of themerits of the main judgement. This I do, not to show a mirror to the sun, but because I think it is

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necessary that the result of separate perceptions in respect of common matters may come on the recordand provide food for thought in respect of some very serious and sensitive issues that have arisen beforethis nascent body, recently established by the United Nations, which is trying to find expression for itself.

2. Before dealing with the main issues arising in this appeal, I feel that certain matters need to be dealtwith at the outset:

First: The competency of the present appeal

Second: Certain matters concerning the following subjects, for a betterunderstanding of the issues which are primarily civil but remain to be discussedin the criminal jurisdiction and for avoidance of repetition during theexamination of the main issues:

(A) The framework of the United Nations Charter

(B) Constitutional approaches in the national field relating to judicial review,

(C) The role of the Security Council under Chapter VII,

(D) The General Assembly and the Security Council in the framework of the Charter,

(E) The position of the International Court of Justice vis-à-vis judicial review,

(F) The position of the International Tribunal vis-à-vis powers of judicial review,

A. Facts leading up to the establishment of the International Tribunal.

THE COMPETENCY OF THE APPEAL

3. I would first take up the question as regards the competence of this appeal against the decision of theTrial Chamber passed in preliminary motion.

4. The Prosecutor, in his written submissions, has challenged the competency of this appeal insofar as itrelates to the grounds that the Tribunal was unlawfully established and primacy could not be granted to it,as these being matters not relating to the jurisdiction of the Tribunal, Rule 72 (B) of the Tribunal’s Rulesbars such appeal. During arguments, the Prosecutor also took up the position that the whole of the appealin respect of all grounds was premature, as Article 25 permitted such filing only after the appellant wasfound guilty and convicted. During arguments the counsel for the appellant urged that Rule 72 (B) of theTribunal’s Rules having been framed by the Judges themselves, should be given credence and should betreated as permitting the filing of the appeal. During arguments, in response to certain observations fromsome members of the Bench that the object of Rule 72 (B) was to supply the defect and expedite theappeal, the Prosecutor shifted from his original position and observed that he supported the observations,as otherwise it would entail Rule 72 (B) being struck down as ultra vires, which would place the appellantin the awkward position of having to wait till his conviction was recorded to have his appeal even on astraight jurisdictional question decided, which, if his plea was ultimately accepted, would have renderedthe trial useless and subjected the parties to indefinitely long proceedings. As regards the appeal qua thequestion of unlawful establishment, I have held in para. 33 that the same can be treated as extending into

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the question of lack of jurisdiction. As regards the appeal qua the question of primacy, I have also held,for reasons given in para 78 that the same result follows. The third question undoubtedly relates to lack ofjurisdiction. However, the question as regards whether the appeal qua all questions raised is premature, isstill open.

5. I am of the view that a question as regards competency of the appeal, which is an important question ofsubstantive law, cannot be allowed to be decided on the wishes of the parties. Out of respect for thesituation created, I would like to look into the matter.

6. The law relating to appeals in most national jurisdictions is that no appeal lies unless conferred bystatute. The right to appeal a decision is part of substantive law and can only be granted by the law-making body by specific enactment. Where the provision for an appeal or some form of review by ahigher forum is not regulated by the statute under which an order is passed, there is usually some omnibusstatute providing for appeals in such cases. The courts have no inherent powers to create appellateprovisions or acquire jurisdiction where none is granted. Where the law provides for an appeal, the courtmay, by the adoption of reasonable and proper rules, supply deficiencies in the statutory provisions as topractice. Appellate courts have no jurisdiction over incompetent appeals other than dismiss them. It isthus clear that a tribunal or court cannot assume appellate powers under any concept of inherentjurisdiction or by expanding its jurisdiction through any amendment to its rules.

7. Statutory provisions regarding appeals do, however, provide for different types of appeals, the severalcategories of persons that can avail themselves of this remedy and the different kinds of remedies that canbe allowed by way of relief, which provisions generally vary from jurisdiction to jurisdiction. This is anappeal against an interlocutory order passed by the Trial Chamber on a preliminary motion moved by theappellant. In this context, it is necessary to see what the Statute of the International Tribunal has to say onthe question of appeals.

8. Article 25 of the Tribunal’s Statute, which deals with appellate proceedings, states:

"Article 25

Appellate Proceedings

(1) The Appeals Chamber shall hear appeals from persons convicted by the Trial Chambersor from the Prosecutor on the following grounds:

(a) an error on a question of law invalidating the decision; or

(b) an error of fact which has occasioned a miscarriage of justice.

(2) The Appeals Chamber may affirm, reverse or revise the decisions taken by the TrialChambers."

Paras. (a) and (b) or sub-article (1) deal with questions relating to errors of law and fact and theparameters within which they have to be examined; the opening words of sub-article (1) deal with thetypes of persons entitled to the remedy; and sub-article (2) deals with the types of reliefs allowed by wayof remedy.

9. I now turn to some of the Tribunal’s Rules which are relevant on the subject of appeals. They are asfollows:

"Rule 72

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General Provisions

(A) After the initial appearance of the accused, either party may move before a TrialChamber for appropriate relief or ruling. Such motions may be written or oral, at thediscretion of the Trial Chamber.

(B) The Trial Chamber shall dispose of preliminary motions in limine litis and withoutinterlocutory appeal, save in the case of dismissal of an objection based on lack ofjurisdiction."

"Rule 73

Preliminary Motions by Accused

(A) Preliminary motions by the accused shall include:

(i) objections based on lack of jurisdiction;

(ii) objections based on defects in the form of the indictment;

(iii) applications for the exclusion of evidence obtained from the accused or having belongedto him;

(iv) applications for severance of crimes joined in one indictment under Rule 49, or forseparate trials under Sub-rule 82 (B);

(v) objections based on the denial of request for assignment of counsel.

(B) Any of the motions by the accused referred to in Sub-rule (A) shall be brought withinsixty days after his initial appearance, and in any case before the hearing on the merits.

(C) Failure to apply within the time-limit prescribed shall constitute a waiver of the right.Upon a showing of good cause, the Trial Chamber may grant relief from the waiver."

"Rule 108

Notice of Appeal

(A) Subject to Sub-rule (B), a party seeking to appeal a judgement or sentence shall, not morethan thirty days from the date on which the judgement or sentence was pronounced, file withthe Registrar and serve upon the other parties a written notice of appeal, setting forth thegrounds.

(B) Such delay shall be fixed at fifteen days in case of an appeal from a judgement dismissingan objection based on lack of jurisdiction or a decision rendered under Rule 77 or Rule 91."

10. The main question that arises is whether Article 25 of the Statute provides both the accused and theProsecution the right to file appeals against the main judgement after the accused is convicted, but stiflesthe right of the accused to file appeals against orders passed on preliminary motions till after hisconviction is recorded, but does not limit such right of the Prosecutor even though the accused may nothave been convicted. This - I think - is how the Prosecutor placed his objection originally.

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11. International law is not totally grounded in national concepts, though at times it borrows ideas fromnational jurisdictions to meet the international range of its objectives. For the most part, it seeks to keepitself free of rigid, strict and inflexible national rules and principles where they tend to be dogmatic orobstruct a fair, liberal or equitable approach to a problem. The strict rules governing appeals and thewhole range of rules and procedures surrounding the system, whether substantive or procedural, as foundin national systems, may be a source of material to draw from, but international bodies would accept themfree from strict rigidities binding them, from which they cannot extricate themselves. International lawconceives of procedures which are flexible and subject to modification and change in extreme cases,should questions of fairness and equity come into play.

12. It cannot be denied that the Security Council, which gave birth to the Tribunal, is far removed from itsoffspring; the umbilical cord having been severed. The Tribunal was created as an independent andimpartial body, and, if the report of the Secretary-General carries any meaning, the Tribunal "would, ofcourse, have to perform its functions independently of political considerations; it would not be subject tothe authority or control of the Security Council with regard to the performance of its judicial functions."(Report of the Secretary-General pursuant to paragraph 2 of Security Council Resolution 808 (1993),U.N. Document No. 5/25704 of 3rd May, 1993, hereinafter referred to as "the Secretary-General’sReport" para 28, emphasis supplied). A request, therefore, by the International Tribunal for an amendmentof any part of its Statute would involve the Security Council in a more difficult exercise to see it through,than what it faced when the Statute was adopted and the mood of the members was more inclined to themeasure, than what perhaps it may be today. Be that as it may, to meet such a situation and not to beinvolved in the judicial functions of the Tribunal, the Secretary-General provided in the Statute of theInternational Tribunal Article 15, granting power to the Judges to "adopt rules of procedure and evidencefor the conduct of appeals...and other appropriate matters." The Judges, in their wisdom, framed Rule 72(B), to bring the appeal of an accused forward in time if it challenged an interlocutory order dismissing anobjection based on lack of jurisdiction, instead of requiring him to wait until he was convicted. As appearsex-facie from Article 25 of the Statute, the Prosecutor has such a right before the accused is convicted. Tobring forward the accused’s appeal, so that he stood on an equal footing with the Prosecutor, was no morethan to bring both the accused and the Prosecutor at par. It must not be forgotten that if the said rule hadnot been framed, the appellant would have had to wait until his main trial was over and if he had thenasserted the same ground, with others relating to the main case, and the Appeals Chamber had found hisground acceptable, the whole of the trial and the time consumed therein would have been wasted. Fairnessand equity were, therefore, at the root of the amendment, when the Judges granted equal treatment to theaccused in respect of this matter, and I would consider Rule 72 (B) as shortening limitation and oneframed in an unoccupied field; limitation not having been provided in the Tribunal’s Statute. Again,another important matter arises. If I may say with respect, the wording of Article 25 is also not very clear.The report of the Secretary-General in respect of this Article, seems to suggest that "the judgement of theAppeals Chamber affirming, reversing or revising the judgement of the Trial Chamber would be final." Ifone inspects Article 23 and Secretary-General’s Report para 118, the word "judgement" relates to themain judgement. Was, therefore, Article 25 only intended to apply to the main judgement? There is noindication in the Secretary-General’s report that Article 25 could also apply to interlocutory orders. Theview of the Judges, when they drafted Rule 72 (B), seems to suggest that they assumed that Article 25covered appeals against the main case and interlocutory matters. Rule 72 (B) implicitly accepts thisposition. From an overall perspective — and since Rule 72 (B) is intended to meet the requirements offairness and equity — I would consider it as supplying a deficiency in the statutory provision as towhether appeals against interlocutory orders are permissible and would hold that Rule 72 (B) supplies thedeficiency and, being a provision in an unoccupied field, is not ultra vires the Tribunal’s Statute. I would,therefore, hold that this appeal is maintainable.

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THE FRAMEWORK OF THE UNITED NATIONS CHARTER

13. Before delving into the appeal, it is necessary to understand the structural arrangements set forth in theCharter of the United Nations.

14. The Charter establishes six primary bodies at the apex called principal organs i.e., the GeneralAssembly, the Security Council, the Economic and Social Council, the Trusteeship Council, theInternational Court of Justice and the Secretariat. In addition, the Charter provides for the establishmentof subsidiary organs as may be found necessary in accordance with the provisions contained in theCharter; the General Assembly and the Security Council being given express rights in this respect. TheCharter also permits the establishment of commissions by some of the principal organs, as may berequired for the performance of their functions; the Economic and Social Council and the InternationalCourt of Justice having express powers to do so. The Charter recognises the various specialised agenciesestablished by intergovernmental agreements that have wide international responsibilities as defined in theCharter, provided the Economic and Social Council has entered into agreements with them to bring theminto working relationship with the Organisation. Furthermore, the Charter recognises regional agencies setup by Member States for dealing with matters relating to the maintenance of international peace andsecurity, provided their activities are consistent with the purposes and principles of the Organisation, byenabling the Security Council to use such regional agencies for enforcement actions under its authority.Lastly, the Charter recognises the existence of international agencies, as in Article 48, but this perhaps isin the general context of all international bodies created outside the Charter.

15. The establishment of six principal organs of the United Nations and of the Military Staff Committee(now moribund) are the direct outcome of the Charter provisions. The establishment of the subsidiaryorgans and commissions created by the principal organs is the outcome of the express powers delegated tothem in that respect by the Charter. The specialised agencies and regional agencies referred to in theCharter appear to be bodies created by inter-governmental or international groups or agencies, someperhaps sponsored by UN principal organs or sub-organs.

16. It is in the context of the structural arrangements set out above that the question whether a legaltribunal or court can look into the legality of its own establishment or birth, as opposed to review or reviseits own orders, whether final or interlocutory, calls for examination.

CONSTITUTIONAL APPROACHES IN THE NATIONAL FIELD

RELATING TO JUDICIAL REVIEW

17. Some observations on the laws dealing with interpretation of constitutional documents, both in thenational and international field, will not be out of place. In the national field, countries use a variety ofapproaches to constitutional questions, such as (i) whether the doctrine of parliamentary supremacy or thesupremacy of the legislative body at the apex applies, or (ii) whether the acts of the legislature can bejudicially reviewed or held void upon any ground, or (iii) whether any part of the judiciary can judiciallyreview action taken by the main organs, i.e., the legislature, the executive and the judiciary. (The words"judicial review," should hereinafter be taken to mean the power of another higher judicial body or forumto approve, set aside or amend any order, as in appeal or revision, of a particular body, as opposed to thepower of that particular body to set aside or amend an order passed by itself, as in simple review). Somecountries openly allow their courts to judicially review legislation, even if it directly touches on any partof their constitution. Some adopt grundnorms or rules as basic to legislation and grant powers to higherforums to judicially review legislation violating such fundamental rights.

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18. In short, the question boils down to whether the constitutional document treats any organ or body of aState as supreme or sovereign, whose actions cannot be repealed, annulled or controlled by any otherorgan or body, or whether it permits any action of any of its organs or bodies to be judicially reviewed byany other organ, such as by a superior court or tribunal, and if so, to what extent and under whatconditions. If the power of judicial review is granted, such review is possible under the parameters stated.If not, judicial review is not possible, unless it can be drawn in under more idealistic concepts, such asnatural law, historical rules, positive activism, etc., which concepts otherwise are not too easily invocableor applicable. In the American jurisdiction an objection to the lawful establishment of a legal tribunal orbody can only be taken by the State in quo warranto or other direct proceedings, but not by the individual,and that if such an objection is raised by an individual collaterally in legal proceedings, whether originalor appellate, it is rejected. SSee 15 Corpus Juris 875; Ex parte Ward 173 U.S. 452 (1899)C. In the Englishjurisdiction, all that a court can do is to look at the procedural role as to

whether the bill has passed both Houses and received the Royal assent, but cannot enquire into the modein which the bill was introduced, nor what was done previous to it, nor what passed in Parliament duringits progress. SSee 44 Halsbury’s Laws of England, p.504; British Railways Board v. Pickin, (1974), 1 AllE. R. 609, (H.L.)C.

19. In the international field, the position is not too different. The constitution of any international body,by whatever name called, would govern the situation. If the constitutional document permits judicialreview by any organ or body of any action taken by any other organ or body, judicial review would beavailable, within the parameters, if any, laid down. Where it is not so, judicial review would not beattracted. One must bear in mind the main scope and purpose of the international body, for not all governor make laws or rules to enforce their will authoritatively or provide organs having penal or peremptoryprovisions of enforcement. This, however, does not mean that a non-judicial organ or body that has takenany action cannot itself review its own action. An international body in proper cases cannot be permittedto be bereft of such a power.

THE ROLE OF THE SECURITY COUNCIL

UNDER CHAPTER VII

20. The Security Council of the United Nations, as the main organ charged with the duty of maintainingand restoring peace and security within the limits of the terms contained in the Charter, has had a difficultrole. Objections as regards its legal role and the scope of its authority have been raised from time to time,specially in regard to its enforcement powers and peace-keeping operations. With the end of the cold warand consequent increase in Security Council activities, the bounds of its authority in this field have beendebated often. From decisions on questions well within its clear jurisdictional limits, to those fallingwithin permissible frontiers, the Council is alleged to have broken its banks and intruded into uncharteredterritory, originating controversy, undermining its respect and almost compelling certain States to renegeon their duty to accept its resolutions. These features raise the question whether, under the terms of theUnited Nations Charter, the actions of the Security Council, taken in exercise of its Chapter VII powers,can be judicially reviewed, where such actions are outside the scope of the Council’s jurisdictionalboundaries, or violate the principles and purposes of the Charter or jus cogens?

21. The Security Council is basically not a judicial body. Its discretionary power under Article 39 todetermine what constitutes the existence of a threat to the peace, breach of the peace, or acts ofaggression, is not a matter which can be decided within the limits of any hidebound judicial approach. Itmust not be forgotten that under national laws these matters generally fall within the category of "Acts of

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State" (eminent domain), where public or judicial interference is treated as barred. Though States havetransferred their sovereignty on these matters to the Security Council, it cannot be assumed that indelegating their authority to the Security Council the States granted full powers to the Security Council toact according to its whims or purely on capricious considerations. Thus, an objective approach to thequestion cannot be totally ignored, just because a legal determination of such a question does not invite astrictly juridical approach. The fact that during the San Francisco Conference, attempts to limit theCouncil’s discretion were resisted, is no ground to hold that the decision was correct for all times to come.It is alleged that experience over the last fifty years favours a change of view. The vast variety ofsituations in which the Council has determined what constitutes a threat to the peace, has raisedconflicting views. All exercise of discretionary power is subject to the rule of fairness and reasonablenessand to the jurisdictional limits provided, or which fairly and inherently can be assumed out of the objectsand purposes that call for its exercise and the surrounding circumstances that create its need. Internationallaw is not totally silent in regard to matters as to what constitutes a threat to the peace, or a breach of thepeace, or an act of aggression. Even if it were, common sense and logic would supply the mutations andchannel the discretion into guided parameters. To impute to the Council the levity of an open and loosediscretion, just because its actions are not open to judicial review by an outside independent body, wouldbe to provide the Council the free liberty of acting outside permissible parameters; thus shaking publicconfidence. One safeguard is that the Council create new mutations to provide for itself guidingparameters, so that even if there are no preliminary rules governing its application, its exercise is foundedin some method. As Lord Penzance submitted in Morgan & Morgan (1869, L.R. 1P. & D. 644 at 647),"the duty of reducing its exercise to method devolves on the Court which exercises it." At least thedisgruntled could say, "though this be madness, yet there is method in it" (Shakespeare).

22. But any attempt to limit the exercise of discretion in any form could destroy the very basis for whichArticle 39 has been created. Complex situations in the modern world have compelled the Council tobroaden the category of situations that it treats as threats to peace, though it may be alleged that suchsituations have not presented themselves as clear cases for the exercise of discretion. Hideous violationsof humanitarian law, which have left the world community aghast, have compelled Member States of theUnited Nations and the Security Council to find solutions. Such violations have led the Council to takeaction under Chapter VII on the basis of special circumstances and as action not constituting precedents.If the world community, through its representatives, discreetly permits the Council to exercise a free andloose discretion, it hardly lies in its domain to pull up the Council for such laxity when its representativesare not committing any indiscretion. Since a string of extraordinary situations inviting an immediateresponse have presented themselves, inviting Chapter VII measures, the loose parameters covering theexercise of discretion, with the Council being the sole judge of when and where to act or when and whereto enlarge or restrict the exercise of its jurisdiction, have come to be accepted as a reality and part of thesystem.

23. Even if this be accepted, the attitude of certain permanent Members of the Council to unduly frustratethe exercise of a valid action by exercise of the veto power, or of Members to either support action, whereit is not permissible, or not support action, where it is truly desirable, has raised concerns as regards thewavering and uncertain exercise of political power. Where serious doubts arise as regards the action of theCouncil being ultra vires, or against the principles and purposes of the Charter, or violating the jus cogensrule, a speedy remedy is desirable. If it is not available, Member States would band themselves together todefy it, or, out of desperation, leave the Organisation. It is high time that the Organisation provided someeffective remedy, so that the aggrieved parties may get some opportunity for a review of the Council’sdecision.

THE GENERAL ASSEMBLY AND THE SECURITY COUNCIL

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IN THE FRAMEWORK OF THE CHARTER

24. A word about the position of the General Assembly and the Security Council in the framework of theCharter would not be out of place. The Charter of the United Nations does not provide the three arms ofthe State in its classical form, i.e., a judiciary, an executive and a legislature. The International Court ofJustice has clearly held that the Charter of the United Nations does not invest the Organisation with thestatus of a State, or that its legal personality and rights and duties are the same as those of a State, or thatit can in any way be treated as a "super-State," whatever that expression may mean. SSee Reparation forInjuries suffered in the Service of the United Nations, 1947 I.C.J. 174, 179.C

25. The Charter basically provides a mixed functional structure; a General Assembly with the subtlepower to make recommendations and suggestions, but not to take any decisions, except in relation to thebudget, a Security Council with no general executive powers, but with special powers to determine athreat to the peace, breach of the peace, or act of aggression and in that direction to recommend or directcorrective actions to restore and maintain peace and an International Court of Justice with power to decidedisputes between States, where they are submitted to it by consent, and other matters which are speciallyprovided for in the Charter and to give advisory opinions, with no direct right to review the competence ofthe other organs. The Charter does not expressly confer any supreme or sovereign role on any of itsprincipal organs over any of the others, nor is there any rule or historical source to permit such aninference. In fact, the Charter permits the sharing of information and duties to strengthen internal co-operation amongst the various principal organs. For example, although the General Assembly has vast andfar-reaching powers to oversee the working of the other principal organs and sub-organs, and to makerecommendations thereof to its Members or to the Security Council or to both on matters or questionstouching the scope of the Charter, it has not been expressly treated as having any superior status over thatof others. The Charter does not expressly lay down any hierarchical status amongst its principal organsand no principal organ can boast of any supreme status or of having any right of repealing, annulling orcontrolling the action of any other, other than work in co-operation with each other, in channels of mutualrespect and goodwill, as expressly allowed by the Charter. Even where the General Assembly is given thepower to oversee the working of other organs, the Charter uses genteel language, such as, inter alia, theconsideration and discussion of matters, or the making or initiation of studies, or the receiving andconsideration of reports, or the making of recommendations, or calling their attention to certain facts.Being the larger plenary body with an extensive range of competence and powers to oversee the workingof other organs, one could treat it as "senior amongst equals", but with its powers only limited to makingrecommendations, the Charter even does not give to it that divinity it deserves.

26. As against this large body, the Security Council, a much smaller body, with delegated authority fromits Member States, acting within a much limited and sensitive field, has been given the power of takingimportant decisions. Thus, what follows is that each principal organ is competent to decide the scope ofits authority, within the ambit of the Charter provisions, and to determine for itself the nature of the actionit can take. Each organ respects the independence of the others and refrains from interfering in theirworking. Nowhere has any principal organ been given the power to judicially review the action of anyother principal organ or of any sub-organ created by it.

THE POSITION OF THE INTERNATIONAL COURT OF JUSTICE

VIS-À-VIS JUDICIAL REVIEW

27. Since we are faced with the issue of the scope of our power of review, it is useful to examine how theInternational Court of Justice has attempted to examine serious objections as regards actions of the other

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organs of the United Nations. The International Court of Justice is a principal organ of the UnitedNations. It is its judicial arm or legal organ. Article 36 (1) of its Statute provides that the jurisdiction ofthe Court comprises all cases which the parties may refer to it and all matters specially provided for in theCharter of the United Nations or in treaties and conventions in force. As Judge Lachs stated in hisseparate opinion in the Lockerbie case, S1992 I.C.J. Reports 114, 138C, "the Court is the guardian oflegality for the international community as a whole, both within and without the United Nations" (I.C.J.Reports 1971, p.26) and that its task is "to ensure respect for international law" SNamibia case 1949 I.C.J.Reports 16, 35C. In the event of a dispute "as to whether the Court has jurisdiction", under Article 36 (6)of its Statute, "the matter has to be settled by the decision of the Court." Though the Court is not vestedwith the power of judicial review or appeal over the actions of any of the other organs, but it undertakesunder Article 38 of its Statute the task of collaterally examining "out of bound" matters as are submittedto it, in accordance with international law from a strictly legal point of view. As held by JudgeWeeramantry in the Lockerbie Case:

"The interpretation of Charter provisions is primarily a matter of law, and such questions oflaw may in appropriate circumstances come before the Court for judicial determination.When this does occur, the court acts as guardian of the Charter and of international law for, inthe international arena, there is no higher body charged with judicial functions and with thedetermination of questions of interpretation and application of international law. Anchored tothe Charter in particular and to international law in general, the Court considers such legalmatters as are properly brought before it and the fact that its judicial decision based upon thelaw may have political consequences is not a factor that would deflect it from discharging itsduties under the Charter of the United Nations and the Statute of the Court." S1992 I.C.J.Reports 114, 166C

28. Certain observations made by the International Court of Justice, when examining requests for judicialreview, also deserve mention. In the Namibia case the Court, by majority opinion, ruled in this respect:

"Undoubtedly, the Court does not possess powers of judicial review or appeal in respect ofthe decisions taken by the United Nations Organs concerned . . . . . . However, in the exerciseof its judicial functions and since objections have been advanced, the Court, in the course ofits reasoning, will consider these objections before determining any legal consequencesarising from those resolutions." S1971 I.C.J. Reports 16, 45C

After examining the submissions, the Court ruled that the Security Council’s decisions were in conformitywith the principles and purposes of the Charter and in accordance with its Articles 24 and 25 and that,therefore, they were binding on all States, which were thus under an obligation to carry them out.

29. Several of the separate and dissenting opinions in the Namibia case discussed the issue of the Court’spower to review the disputed Security Council and General Assembly resolutions.

For example, Judge Ammoun in his separate opinion stated:

"the International Court of Justice owed it to itself to discharge its own obligations by notclosing its eyes to conduct infringing the principles and rights which is its duty to defend"(ibid., p. 72, para.3).

Judge PetrŽn also declared in his separate opinion:

"So long as the validity of the resolutions upon which resolution 276 (1970) is based has notbeen established, it is clearly impossible for the Court to pronounce on the legal

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consequences of resolution 276 (1970), for there can be no such legal consequences if thebasic resolutions are illegal . . . . . . " (Ibid., p. 131).

And Judge Dillard took the position that:

"A court can hardly be expected to pronounce upon legal consequences unless the resolutionsfrom which the legal consequences flow were themselves free of legal conclusions affectingthe consequences. To say this, in no sense implies that the Court is questioning theapplication of the San Francisco formula with respect to the interpretation of the Charter.Furthermore, the greatest deference must be given to resolutions adopted by the organs of theUnited Nations . . . . . But when these organs do see fit to ask for an advisory opinion, theymust expect the Court to act in strict accordance with its judicial function. This precludes itfrom accepting, without any enquiry whatever, a legal conclusion which itself conditions thenature and scope of the legal consequences flowing from it." (see op. Dillard, p. 151).

Judge Onyeama also stated:

"In exercising its functions the Court is wholly independent of the other organs of the UnitedNations and is in no way obliged or concerned to render a judgement or opinion which wouldbe ‘politically acceptable’. Its function is, in the words of Article 38 of the Statute, ‘to decidein accordance with international law’.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

When . . . .decisions bear upon a case properly before the Court, a correct judgement oropinion could not be rendered without determining the validity of such decisions, the Courtcould not possibly avoid such a determination without abdicating its role of a judicial organ.

. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .

I do not conceive it as compatible with the judicial function that the Court will proceed tostate the consequences of acts whose validity is assumed, without itself testing the lawfulnessof the origin of those acts." (Ibid., pp. 143-144).

Judge Gros in his dissenting opinion stated:

"It used not to be the Court’s habit to take for granted the premises of a legal situation theconsequences of which it has been asked to state . . . . How indeed can a court deduce anyobligation from a given situation without first having tested the lawfulness of the origins ofthat situation?" (Ibid., pp. 331-332, para. 18).

30. The rule arising out of the majority opinion and the views expressed by various judges can be safelyput thus: the International Court of Justice, as a principal organ of the United Nations, has no powers ofjudicial review or appeal over actions of any other principal organ, but where such an objection is taken,the Court, in the exercise of its judicial function, would like to appraise it, so that "in the course of itsreasoning" it can determine the legal consequences that arise from the disputed action. In short, it is a stepnot to sit directly in judgement, but to examine the matter collaterally in the exercise of its judicialfunction and to see if the material presented, if taken into account, can determine unusual legalconsequences arising from the disputed action. If the disputed action is found to be in conformity with theprovisions of the Charter, there may be no need for interference. If not, as observed by Judge El-Kosheriin his dissenting opinion in the Lockerbie Case S1992 I.C.J. Reports 114, p. 208C, it is possible that theCourt may reach a negative decision, were it to detect any violation of the Charter or departure from the

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Charter’s purposes and principles. The observations of Judge De Castro in the Namibia case in the sameconnection will not be out of place:

"The principle of ‘legal-ness’ —- the Court, as a legal organ, cannot co-operate with aresolution which is clearly void, contrary to the rules of the Charter, or contrary to theprinciples of law" . S1971 I.C.J. Reports 16, 180C

31. Thus, without acting as a straight court of judicial review or appeal, the International Court of Justice,maintaining its proprieties and balances with coeval organs of equivalent power and independence, hasfound for itself a way to examine the matter.

THE POSITION OF THE INTERNATIONAL TRIBUNAL

VIS-À-VIS POWERS OF JUDICIAL REVIEW

32. Against the above background, the position of the International Tribunal may be examined. Asopposed to the International Court of Justice, the International Tribunal is the creature of a principal organof the United Nations, i.e., the Security Council. Since an open conflict between some of the onceconfederal states of the former Socialist Federal Republic of Yugoslavia involving alleged genocide,"ethnic cleansing" and serious violations of international humanitarian law constituted a threat tointernational peace, it was felt that an ad-hoc measure in the establishment of an international judicialtribunal would not only put an end to such crimes, ensure that such violations were halted and effectivelyredressed and bring to justice the persons who with impunity were resorting to them, but also contribute tothe restoration and maintenance of peace. Having found that there was a threat to peace, the SecurityCouncil conceived the International Tribunal as a body that would advance the restoration andmaintenance of international peace and security.

33. The International Tribunal was conceived as a superior Court of Record, with international stature,having original and appellate criminal jurisdiction over natural persons, with all the indicia of a fullyindependent, impartial and responsible legal body of the highest integrity and with procedures ensuring afair and expeditious trial and full respect for the rights of the accused. The International Tribunal cannotbe equated with a subsidiary organ over which a principal organ normally exercises administrative andsupervisory powers. Though the Tribunal was structured to "perform its functions independently ofpolitical considerations" and that "it would not be subject to the authority or control of the SecurityCouncil with regard to the performance of its judicial functions" (see Report of the Secretary-General,para. 28), one cannot avoid the fact that administratively the Secretariat has some say in the non judicialfunctions and problems of the Tribunal. Nevertheless, the Tribunal is a strictly independent judicial body.The determination of all legal and factual matters is governed by rules and principles as normallyavailable to and strictly applied by courts of law. Any judicial Tribunal operating under a statutoryenactment has the inherent jurisdiction to look into objections as regards its competence to deal withmatters provided for in the enactment. Should such a power be expressed therein, it does not grantanything more than express what it inherently has. As regards its competence to look into its own lawfulestablishment, the same must be implied or treated as one to be examined as collateral to the issue as towhether it can exercise its powers, for if its establishment were effected, it would have no ordinaryjurisdiction to deal with matters provided for in the statutory enactment. The International Court of Justicein the Nottehbohm case (1953 I.C.J. Report p.119), has held that in accordance with previouslyestablished precedents, unless a convention to the contrary exists, an international Tribunal is the solejudge of its own competence and has the power to interpret the documents which regulates it. The fact thatthe question as regards its own establishment is tied up with a political question, is also no basis to

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withhold examination. Therefore, where an objection is raised as regards its own powers, the Tribunalcannot refuse to hear such a request; and should a valid objection be raised as regards its own lawfulestablishment, irrespective of the question whether the accused should be permitted to be heard in respectthereof, there cannot be any doubt that it would affect its own valid competence and nullify its ability toexercise any powers. There is no impartial or independent body over this Tribunal to look into suchserious legal questions and the right of the accused to move the Security Council for an examination of hisobjections is far too remote, if not non-existent. Whilst not admitting the position, even the inter-Tribunalappeal amongst a system of rotating judges may be looked upon as not strictly impartial, where a questionof lack of competence due to the Tribunal’s own unlawful establishment arises.

34. The individual who is arraigned before the Tribunal, in particular, and the public, all look to this bodyfor an explanation for all serious legal objections that may be raised, particularly as regards matters in thejurisdictional field. Being an International Tribunal at the apex of international criminal jurisdiction, itstands as an accountable body to all peoples of the world in respect of its compétence de la compétenceand the public cannot accept silence as a guarantee of its impartiality or independence. Unlike theInternational Court of Justice, whose exercise of jurisdiction is by consent, this Tribunal’s jurisdictionover persons is obligatory. To put it squarely, the accused has a right to be heard and the Tribunal theright to examine the matter on the principle of compétence de la compétence. I want to be clear that theTribunal is not as it were looking for material to support its claim to legitimacy. What it has to decide itmust decide and, even if it is against its own interests, it must do so fearlessly.

35. An unusual factor in this case is that though the decision to establish the International Tribunal wastaken by the Security Council under its Chapter VII powers, the structuring of the Tribunal and its Statutewas not undertaken by the Council within the confines of its closed doors, but passed to the Secretariat forfull and necessary action. By Resolution 808 (1993) the Secretary-General was directed to submit forconsideration by the Council within sixty days a report on all aspects of this matter, including specificproposals and, where appropriate, options for the effective and expeditious implementation of the decisionto establish the Tribunal, taking into account suggestions that may be put forward by Member States. Itappears that from this point onwards the matter passed totally into the hands of the Secretariat. TheSecretary-General received a mass of opinions as to what the Tribunal should be from a large number ofMember States (numbering over thirty three), governmental and non-governmental bodies, committees,commissions, legal bodies, jurists and legal luminaries. It also received a number of drafts of what theTribunal’s statute should be from various quarters. Taking all relevant matters into consideration, theSecretary-General presented his report to the Council within the time prescribed, with a draft of theTribunal’s Statute prepared by the Secretariat. The Secretary-General, in para. 28 of his report, clearlystated that the Tribunal was established "as an enforcement measure under Chapter VII, a subsidiaryorgan within the terms of Article 29 of the Charter, but one of a judicial nature" (Secretary-General’sReport at p.28). The Security Council approved the report and the draft of the Tribunal’s Statute byResolution 827 (1993) on 25 May, 1993. Though the Council approved the draft Statute of the Tribunaland set its seal on its establishment, any appraisal of an objection as to its lawful establishment wouldrequire an examination to see whether the initial exercise of the discretion by the Council to establish theTribunal was not a feigned exercise of power under Chapter VII and that the structuring of the Tribunalwas not outside the scope of the Secretary-General’s powers under Article 29 or against the purposes andprinciples of the Charter or jus cogens.

36. However, not unmindful of the Charter provisions which do not permit any principal organ or sub-organ to judicially review the action of any other, much less trench on its jurisdiction outside the limits ofwhat may be permitted by the Charter, the need to find a balance between the limits of jurisdiction and thelimits of necessity calls for a somewhat liberal but cautious approach in an environment whereinternational law seeks new mutations to meet unusual challenges thrown up by new situations. Whateverbe the position, with respect, I hold that the International Tribunal can examine the matter, not unmindful

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of the rule laid down by the International Court of Justice with regard to judicial review, as stated in para.30 above, for the purposes of determining what legal consequences may arise out of the Council’s andSecretariat’s composite actions. Were it to find a serious flaw in its establishment, what steps the Tribunalwould take, I would not like to determine now. Whether it would make a simple declaration to that effectand leave it to the Security Council of the United Nations to correct the situation, or having made such adeclaration, continue as an ad-hoc tribunal till the said body or Organisation comes to its aid, are some ofthe lines of action that may be debated, but the matter can be best dealt with when it arises and I wouldleave the matter perennial and open.

FACTS LEADING UP TO THE ESTABLISHMENT

OF THE INTERNATIONAL TRIBUNAL

37. It is necessary to recount the facts leading up to the establishment of the International Tribunal by theSecurity Council so that the legal discussions that follow may be properly understood.

38. On 4th May, 1980, Marshal Tito expired. The Socialist Federal Republic of Yugoslavia startedbreaking up. In 1981, riots broke out in the autonomous province of Kosovo (situated within Serbia),which had an Albanian majority. In 1987 Serb nationalism erupted. Between October 1988 and February,1989, the governments of the two autonomous provinces of Kosovo and Vojvodina and of the Republic ofMontenegro resigned. In 1989, the Slovenian government amended its Constitution to give itself the rightto secede from the Federation, leading to tension with Serbia. The Kosovans declared their separationfrom Serbia in July 1990. In the same year, the Slovenians answered a referendum on independence in theaffirmative. In February 1991, Krajina, a region inhabited by Serbs in Croatia, declared its independence,leading to violent incidents. The Serbs in Krajina, held a referendum on the region’s secession fromCroatia and the Croats held a referendum on their independence, both of which were answered in theaffirmative. Slovenia and Croatia declared their independence on 25th June, 1991, leading to brutal armedconflict between the forces of the Socialist Federal Republic of Yugoslavia on the one hand, and ofSlovenia and Croatia on the other. At the request of the European Community, these two Republicssuspended for three months the effective dates of their independence. Slovenia and Croatia respectivelyannounced their decisions to become independent, upon which the Parliament of Socialist FederalRepublic of Yugoslavia passed a resolution to safeguard the internal and external borders of the FederalRepublic.

39. In October 1991, fighting continued in Croatia between its armed forces and that of the SocialistFederal Republic of Yugoslavia. By mid-November 1991 the city of Vukovar, which had been undersiege by the Serbian forces since that summer, was captured by the Serbs.

40. On 27th November, 1991, the Federal Republic of Yugoslavia, the Yugoslav Peoples Army (JN), theRepublic of Croatia and the Republic of Serbia agreed to abide by certain provisions of the GenevaConventions of 1949 and the Additional Protocol I of 1977, including the grave breaches in the provisionsof the Fourth Geneva Convention.

41. On 16th December, 1991, the European Community recognised Slovenia and Croatia as independentstates with effect from 15th December, 1991. On 6th March, 1992, after an earlier declaration ofindependence and referendum, Bosnia-Herzegovina proclaimed itself as an independent state, whichindependence was recognised by the European Community and the United States of America on 7th April1992. Immediately, armed conflict between the forces of the Socialist Federal Republic of Yugoslavia andthat of Bosnia-Herzegovina erupted. On 27th April, 1992, the Republics of Serbia and Montenegro

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declared themselves to be a sovereign state by the name of the Federal Republic of Yugoslavia andundertook to respect the rights of the former Socialist Federal Republics that had declared independence.

42. On 22 May, 1992, the President of Bosnia Herzegovina and the Party of Democratic Action, thePresident of the Serbian Democratic Party (the Bosnian Serbs) and the President of the CroatianDemocratic Party (the Bosnian Croats) signed an agreement binding themselves to be bound by the rulescontained in common Article 3 to the Geneva Conventions of 1949 which applies to internal armedconflict.

43. On 22nd June, 1992, Bosnia-Herzegovina declared that it was in a state of war as a result ofaggression carried out by the Republic of Serbia, the Republic of Montenegro, the Yugoslav Army andthe terrorists of the Serbian Democratic Party.

44. From June 1991 onwards, the Serbs tried to annex the enclaves in Croatia, in which they were in amajority, to their own territory. The Croats tried to do likewise. Since the Serbs and the Croats constitutedthe two major minority communities in Bosnia-Herzegovina, they tried to annex territories and divide thesaid Republic into three independent States.

45. It is clear that the conflict, which had originally started in Slovenia, shifted to Croatia and then toBosnia-Herzegovina. The United Nations Protection Force (UNPROFOR), which had initially beeninstalled to shield Serb enclaves in Croatia, had its mandate enlarged to support all humanitarian actionsat all locations. The UNHCR estimated 350,000 homeless in December 1991, 1,500,000 in May 1992 and2,300,000 in July 1992. What originally had started as repression, had over a period of time, specially inBosnia-Herzegovina, extended into crimes against humanity, mass murders, rapes and sexual assaults,mass tortures in concentration camps and pre-engineered "ethnic cleansing" of civilians.

46. The brutality of the conflict and the new horrendous dimensions in which it travelled, aroused theconscience of all nations. The United Nations conducted inquiries and received information through itsown bodies and authorities. Amongst them may be mentioned the Special Rapporteur appointed by theUN Commission on Human Rights, the office of the United Nations High Commissioner for Refugees(UNHCR), the Human Rights Committee, the UNPROFOR and the UN Commission of Experts.

47. A number of Rapporteur missions were sent out by different bodies. Amongst them may be mentionedthe CSCE Mission, the CSCE Moscow Human Dimension Mechanism Mission and the EC InvestigatingMission into the Treatment of Muslim Women in the Former Yugoslavia.

48. Amongst the International NGO missions may be mentioned Helsinki Watch, Amnesty InternationalLondon, the International Committee of the Red Cross (ICRC), Médecins Sans Frontières, InternationalLeague for Human Rights, Union for Peace and Humanitarian Aid to Bosnia and Herzegovina and "WorldCampaign Save Humanity."

49. Amongst the State missions may be mentioned the War Crimes Investigation Institute, Sarajevo, theCouncil of Human Rights and Fundamental Freedoms, Ljubljana, the State Commission of War Crimes,Belgrade, US State Department and the Muslim Documentation Centre in Zenica.

50. Last but not the least, a host of Member States of the United Nations and other organisations had sentreports to the United Nations providing information on serious international crimes being committed inthe three warring Republics of the former Yugoslavia.

51. On 13th July 1992, the Security Council pursuant to Resolution 764, drew attention to the fact thatpersons who had committed or ordered the commission of grave breaches of the 1949 GenevaConventions were individually liable for such breaches. On 12th August 1992, the Security Council, by

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Resolution 771, called upon States and other bodies to submit firm information about the atrocitiescommitted in the former Yugoslavia to the Secretary-General so that he could report to the SecurityCouncil on additional measures that may be necessary.

52. A word about the United Nations’ own efforts to inquire into this sordid affair will not be out of place.Apart from receiving information through UNHCR, UNPROFOR and the Human Rights Committee, thesaid body also found it necessary to have the matter investigated through its own personnel. This accountsfor the Special Rapporteur appointed by the UN Commission on Human Rights and the Commission ofExperts appointed by it.

53. On 13th August, 1992, the UN Commission on Human Rights in Geneva appointed M. TadeuszMazoweicki, a former premier of Poland, as its Special Rapporteur to report on the state of human rightsin the territory of former Yugoslavia. Mr. Mazoweicki filed more than three reports illustrating the "ethniccleansing" through random executions, mass rapes, undue taking of hostages and destruction of homes,especially in Bosnia-Herzegovina and the UN Protected Areas, the victims of which were mainlyMuslims and Croats. He also found similar violations by the Muslims and Croats in Bosnia-Herzegovinaand by the Croats in Croatia. Mr. Mazoweicki was assisted by advisers Dr. Georg Mautner-Markhof andProf. Roman Weiruszewsksi.

54. On 6th October, 1992, the United Nations Security Council, pursuant to Resolution 780, establishedan impartial UN Commission of Experts to look into widespread violations of international humanitarianlaw occurring in the former Yugoslavia, particularly in Bosnia-Herzegovina, so as to provide theSecretary-General with its conclusions on such violations and grave breaches of the Geneva Conventions.The said Commission was directed to examine and analyse the information already submitted to theUnited Nations by Member States and other bodies, as well as other information obtained through its ownefforts. On 26th October, 1992, the Secretary-General announced the appointment of Prof. FritsKalshoven as the Chairman of the said Commission and of Prof. M. Cherif Bassiouni, William J. Fenrick,Judge Keba Mbaye and Prof. Torkel Ohsalh as its members. The said Commission submitted an interimreport on 26 January 1993, which stated that serious breaches and other violations of internationalhumanitarian law had been committed, including mass killings, "ethnic cleansing", horrid tortures, rape,pillage, destruction of civilian, cultural and religious properties and arbitrary arrests. It also noted that ifan ad hoc international tribunal was established, the United Nations’ decision would be consistent withthe requirements of the time.

55. An incessant stream of reports filed by Member States with the United Nations about the continuingatrocities, placed the United Nations under great pressure. The United Nations peace efforts, snakingslowly without success, had now reached a stage where the peace process had to be supplemented byaction, which meant business, and which also appeased the public conscience. Cyrus Vance and LordOwen, the two co-chairmen of the Steering Committee of the International Conference of the FormerYugoslavia, had repeatedly advocated the setting up of an international criminal court to punish personsguilty of war crimes and breaches of humanitarian law. They had also placed humanitarian issues andhuman rights at the core of the peacemaking process.

56. In view of the overwhelming evidence collected by the United Nations through its own sources andagencies, and that provided to it by other international organisations, bodies and States, the SecurityCouncil, by Resolution 808 on February 22nd, 1993, finally decided to establish an International Tribunalfor punishing persons responsible for violating international humanitarian law in the territory of theformer Yugoslavia since 1991 and the Secretary-General was directed to put up a report, within 60 days,placing specific proposals before the Council in this respect, taking into consideration suggestions putforward by Member States in this behalf.

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57. Though the decision to establish the International Tribunal was taken by the Security Council underits Chapter VII powers, the structuring of the Tribunal’s Statute was not undertaken by the Council withinthe confines of its closed doors, but passed to the Secretariat for necessary action. It appears that from thispoint onwards the matter passed totally into the hands of the Secretariat under Article 29 of the Charter.The Secretary-General had already received a mass of opinions as to what the Tribunal should be from alarge number of Member States numbering over thirty-three, apart from governmental and non-governmental bodies, committees, commissions, legal bodies, jurists and legal luminaries. It also receiveda number of drafts of what the Tribunal’s Statute should be from various quarters. Taking all relevantmatters into consideration it presented its report to the Council within the time prescribed, with the draftof the Tribunal’s Statute prepared by it. The Security Council finally approved the report and the draft ofthe Tribunal’s Statute by Resolution 827 (1993) passed on 25 May 1993.

THE LAWFUL ESTABLISHMENT OF THE TRIBUNAL

58. I now turn to the first of the reliefs claimed by the appellant i.e., that the International Tribunal, havingnot been lawfully established, lacks jurisdiction to try the appellant.

59. On behalf of the appellant it is submitted that though he does not contest the Security Council’sauthority to determine whether a threat to international peace and security exists or that it has the power toaddress itself to such threats, but it is submitted that though such a finding of threat entails a factual andpolitical determination which cannot be measured by any fixed standard, yet any measures that theSecurity Council may take to address itself to such threats are limited by the powers granted by theCharter to the Security Council and by the present state of international law. In this connection it issubmitted that such powers do not authorise the Security Council, a political body, to establish anindependent judicial body, invested with jurisdiction in criminal matters, for it neither has legal powersnor can justify such transference to a legal body, and that the determination of this matter is not solely aconsideration of high policy or political interests, but, in the context of human rights, is also a justiciableissue, when it comes to the prosecution of individuals.

60. The basic question that arises is whether the creation of the International Tribunal by the SecurityCouncil was within the powers granted to this principal organ by the Charter. It is clear that theestablishment of the International Tribunal was for the purposes of restoration and maintenance of peace.Under Article 39 of the Charter, the Security Council is alone empowered to determine the existence ofany threat to the peace, breach of the peace, or act of aggression and has the authority to makerecommendations, or decide what decisions should be taken in accordance with Articles 41 and 42 tomaintain or restore international peace and security. In order to prevent an aggravation of the situation, theSecurity Council, under Article 40, before making the recommendations or deciding upon the measuresprovided for in Article 39, may call upon the parties concerned to comply with certain provisionalmeasures it deems necessary or desirable and to duly take account of failure to comply with suchprovisional measures. Under Article 41, the Security Council can decide what measures not involvingmilitary action can be employed to give effect to its decisions and it may call upon all Member States ofthe Organisation to apply such measures. Such measures may inter alia include, but need not be limitedto, trade embargoes and severance of diplomatic relations. Should measures provided for in Article 41 beconsidered inadequate or prove to be inadequate, under Article 42 the Security Council can take militaryaction as may be necessary to maintain or restore international peace and security. Under Article 24(2), incarrying out its enforcement operations, the Security Council has to act in accordance with the Purposesand Principles of the Charter and within the specific powers granted to it in Chapters VI, VII, VIII andXII.

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61. It cannot be doubted that the Security Council, on the basis of overwhelming evidence, as submitted inparas 38 to 56 above, which it reviewed in several meetings over some length of time, came to theconclusion that the on-going conflict between some of the once constitutive republics of Yugoslaviaconstituted a threat to the peace, and the establishment of an ad hoc international criminal tribunal wouldsupport the restoration and maintenance of peace. A threat to the peace does not necessarily mean onerelative to the States embroiled in an internal or international armed conflict, but one relative to othersalso, particularly adjoining States, which are likely to be, and usually are, affected. The discretionavailable to the Council in arriving at relevant conclusions under Article 39, being one relative to anenforcement measure, could not be measured in terms of any legal standards, other than that it had to befair and not arbitrary or a feigned exercise of power. The decision was based on a proper appraisal of theevidence and was reasonable and fair and not arbitrary or capricious. No objection can be taken to theexercise of discretion by the Security Council in this case.

62. What stands out prominently is that the Security Council did not take any hasty action in arriving atthese conclusions, unlike many other emergency situations where speedy conclusions have been drawn.Rather, it reached its conclusions, after permitting participation of a host of views and the submission of amass of reports from numerous bodies, both governmental and non-governmental.

63. At this stage it may be stated that the Security Council, acting under Article 42, could have orderedmilitary action and, as a part of many of its recommendations to the military authorities, called for thesetting up of ad hoc Courts Martial for trial and punishment of offenders, including the top echelons ofthe army, who had seriously violated international humanitarian law in the territory of the formerYugoslavia, so that such offenders who with impunity had or were committing such offences could bepunished and others of the same ilk could be deterred and that peace could thus be restored andmaintained. If this was possible, as a necessary corollary, the setting up of an ad hoc independent andimpartial international criminal tribunal for a short period dealing with the same territory and coveringsimilar offences committed in the said territory could be treated as the very raison d’être for theestablishment of the present International Tribunal. Had the Security Council attempted to set up aninternational criminal court with general jurisdiction covering international criminal offences committedwithin or without the territories of its Member States, perhaps an objection could have been validly takenthat the decision had no nexus with the restoration and maintenance of peace in the former Yugoslaviaand that the exercise of the power was feigned in order to justify the action. But since the Tribunal to beestablished was of a limited nature, for a limited purpose, for a limited time, for a limited territory and foroffenders who had committed offences within the territory of former Yugoslavia, the decision was validand fair, and squarely fell under Article 41 of the Charter. The fact that the Security Council, underArticle 41, could take non-military measures which could include inter alia, but not be limited to,economic embargoes or severance of diplomatic relations, justified the establishment of the InternationalTribunal. The applicability of non- military measures that can be taken under Article 41 is illustrative andnot limited to those enumerated in this Article. It is urged that the establishment of the Tribunal cannotcontribute to the restoration and maintenance of peace, but that it can only spoke the peace process. It istoo well known that peace can only bring amnesty and those that desire peace do not have to wait for thisTribunal to be disbanded. Peace is restored when nations desire to do so and not when they desire tocontinue the armed conflict. The view of the Security Council that the International Tribunal wouldcontribute to the restoration and maintenance of peace was based on opinions given and assessmentsmade to that effect and which were well founded. Thus, the decision of the Council was also within thefour corners of Article 41 of the Charter.

64. It is contended that the establishment of a judicial body is not a matter that falls within the competenceof the Council under its Chapter VII powers. As stated in the prior para, the establishment of a legal bodylike the present Tribunal, is very much within the scope of the Council’s authority under Chapter VII.Even otherwise, the Security Council could establish a subordinate organ under Article 29 if it deemed it

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"necessary for the performance of its functions." The Council could, therefore, establish a legal body, if itdeemed it necessary for its enforcement action for the restoration and maintenance of peace. The report ofthe Secretary-General clearly shows that the Tribunal was established, under the umbrella of anenforcement measure under Chapter VII, as a subsidiary organ of a judicial nature within the terms ofArticle 29 of the Charter, which subsidiary organ would be free of all political considerations and wouldnot be subject to the authority or control of the Council. Under its Chapter VII powers, the Council, inrespect of enforcement actions, had established a number of subsidiary organs. Reference in this regardcan be made to Security Council Resolution 687 (1991) and subsequent resolutions relating to thesituation between Iraq and Kuwait whereby a number of commissions were established, including the UNCompensation Commission for the Payment of Damages, by way of subsidiary organs. The GeneralAssembly had also created a UN Administration Tribunal as a subsidiary organ, which power wasapproved by the International Court of Justice in case on "The Effect of Awards of Compensation Madeby the United Nations Administration Tribunal" . S1954 I.C.J. Reports 47, 56-61C In this case, theInternational Court of Justice explicitly confirmed that a principal organ of the United Nations couldcreate a subsidiary judicial body and held that the General Assembly in creating the Tribunal had notestablished "an advisory organ or a mere subordinate committee of the General Assembly" but rather hadcreated "an independent and truly judicial body pronouncing final judgements without appeal within thelimited field of its functions." SIbid at 53C Any argument, therefore, that the International Tribunalcannot function both as an independent judicial body and as a subsidiary organ of the Council must bedispelled, because the Tribunal has been granted complete independence by the Security Council, withoutbeing "subject to the authority or control of the Security Council with regards to the performance of itsjudicial functions" (Secretary-General’s Report p.25) and the International Court of Justice in The Effectof Awards case cited above has already held that a judicial body created by a principal organ of the UntiedNations can function impartially. The precedents establish the validity of the Council’s action in settingup a legal body in the nature of an international criminal tribunal as a subsidiary organ, and the decisionof the Security Council to so set it up, as it found it necessary for the restoration and maintenance ofinternational peace and security, is not open to objection.

65. A more forceful argument that has been put forward is that the International Tribunal was not"established by law", in accordance with Article 14(1) of the International Covenant on Civil and PoliticalRights, 1966, (hereinafter referred to as "the ICCPR"). The said provision inter alia states : " . . In thedetermination of any criminal charge against him or of his rights and obligations in a suit at law, everyoneshall be entitled to a fair and public hearing by a competent, independent and impartial tribunalestablished by law." A similar provision, namely, Article 6(1) of the European Convention on HumanRights, states "In the determination of his civil rights and obligations and of any criminal charge againsthim, everyone is entitled to a fair and public hearing within a reasonable time by an independent andimpartial tribunal established by law." What is common between the two Articles in respect of criminaljurisdiction is that the accused is entitled (i) to a fair and public hearing by a court or tribunal which mustbe (ii) independent (iii) impartial and (iv) one established by law. In the Piersack Case (Judgement of 1October 1982), the European Court of Human Rights noted that in order to resolve the issue before it, itwould have to determine whether the phrase "established by law" covered the legal basis for the veryexistence of the tribunal, to which it found there could be no doubt that it was established under Article 98of the Belgium Constitution. SPiersack v. Belgium, 53 Eur. Ct. H.T. (Ser A) 1982C. In the case of the LeCompte, Van Leuven and De Meyere (Judgement 23 June, 1981) the said court held that as the Court ofCassation was set up under the Constitution (Article 95), it was patently established by law. S43 Eur.Ct.H.R. (Ser A) 198C. In the Zand Case (Op. Com., 12 October, 1978) the European Commission onHuman Rights in its opinion and report observed "that the term a tribunal ‘established by law’ in Article6(I) envisages the whole organisational set-up of the Courts, including not only the matters coming withinthe jurisdiction of a certain category of courts, but also the establishment of the individual courts and thedetermination of their local jurisdiction." It further held that "It is the object and purpose of the clause inArticle 6(I) requiring that the courts shall be ‘established by law’ that the judicial organisation in a

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democratic society must not depend on the discretion of the executive, but that it should be regulated bylaw emanating from Parliament . . . . . .Article 6(I) does not require the legislature to regulate each andevery detail in this field by formal Act of Parliament, if the legislature establishes at least theorganisational framework for the judicial organisation." SZand v Austria 15 Eur. Comm’n H.R., Rep 70,80, 1978C. In another case (Dec. Adm. Com. Ap. 8852/80 of 15 December, 1980), the Commission in itsreport approved the view stated in Zand v. Austria (supra) that the object and purpose of Clause 6(I) wasthat the judicial organisation in a democratic society must not depend on the discretion of the executive,but that it should be regulated by law emanating from Parliament. All these cases relate to the civiljurisdiction. However, what is required is that the establishment of the court or tribunal should not bedependant on the discretion of the executive, but should be regulated by law emanating from a legislativebody, preferably a superior one, that such legislative body can delegate matters concerning the judicialorganisation to another body and that the superior legislative body is not required to regulate each andevery detail itself, if the law establishes at best the organisational framework of the judicial organisation.

66. But the important question is whether we are bound by the decisions of the European Court of HumanRights or of the opinions or reports of its Commission. We have not been shown any grounds that thisInternational Tribunal in the criminal jurisdiction is bound to follow such decisions. At best they have apersuasive value. Again, what decisions should we follow as having persuasive value, if we should desireto do so? Whether of the Court or of the Commission? In respect of Article 6 (I), dealing withestablishment of courts or tribunals by law, the European Court of Human Rights has been morecircumspect in keeping the intent in the field of a superior body having law making powers, but theEuropean Commission of Human Rights, whilst setting in motion to determine whether applications filedfor reliefs should be admitted for hearing by the Court or dismissed, have travelled far and held that theexpression "established by law" envisages the whole organisational set-up of the courts, including notonly the matters coming within the jurisdiction of a certain category of courts, but also the establishmentof the court concerned and the determination of its local jurisdiction. In short, the expression "establishedby law" has been taken as envisaging not only the legislative body at some authoritative level havingpowers to establish the court, but the scope of the law itself vis-à-vis the whole set-up of the court thatstands established and its category vis-à-vis any other. With profound respect, I would treat the followingviews of both the European Court of Human Rights and of its Commission with respect and as being asource for guidance, namely, that the courts be established by bodies at some authoritative level havingpowers to legislate and that the laws establishing such courts should be not discriminatory as to affect afair trial.

67. I may now state my own view with regard to the expression "established by law." Ex-facie it refers tothe competent person or body at the apex which at any moment of time stands validly installed orconstituted and has power and authority to legislate or make laws. In several States, constitutions permitdissolution of legislative bodies and their temporary replacements by single individuals, such as by theirPresidents or Governors. During such emergencies, such persons are automatically vested with powers tolegislate. The ICCPR was intended to provide for a mechanism which all Member States could follow andadopt into their own legal systems. The protections embodied in the Conventions stated above areintended for national jurisdictions. Thus any concept that the law making body must only be a legislativebody or an assembly of persons having legislative powers, cannot be accepted on a fair reading of theCovenant. Moreover, all legislatures are political bodies and legislation is the outcome of executive will.Do the legislatures therefore ipso facto become tainted? Again, the real power behind a democraticprocess is public opinion. If that is not there, no legislature by itself can ensure legislation conforming todemocratic standards. What may be seen is whether the people have a right to vote and can participate inthe affairs of government through fair nominations or election. For any given situation, the mode ofinstallation of the single individual or the legislative body at some authoritative level may throw somelight on the matter, but unless there is a flaw that has seriously affected their legal installation orconstitution, a presumption of regularity to their holding of office and exercise of powers would follow.

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Perhaps what may be also relevant is whether the legislation establishing the court or tribunal is notdiscriminatory as affecting a fair trial.

68. There is no objection before us that the Statute of the International Tribunal does not provide a fairand public hearing to the appellant or that the Tribunal is neither independent nor impartial. What isobjected to is that it is not competently established, having been constituted by a political body i.e. theSecurity Council, in its discretion.

69. The Security Council is not a political body in the same manner in which a legislative body in powermay be so characterised, for the members of the latter may be bound to a political party and be compelledto support the policies of that party in all matters throughout their tenure, till the party is in power, but themembers of the Council are not so united, other than impartially to serve the purposes and principles ofthe Charter, subject sometimes to the interests of the States whom they represent, which is rare. In thecase of the Council, the only thing that can be examined is whether the Council was installed through thedemocratic legal mechanism of the Charter and not through other extraneous means. The Charter providesa unique constitution which binds all States, which the States have accepted voluntarily. The presence ofthe permanent members and the election of the non-permanent members to the Security Council, isanother unusual feature which all States have accepted. If all members of the Council are legally and dulyinstalled, a presumption of regularity to its constitution and exercise of powers would automaticallyfollow, unless it is shown to the contrary. The Council does not become "political" simply because itsmembers represent States. In fact, all members of important principal organs are representatives of States,but all such organs do not become "political." What is to be seen is the nature of the action taken andwhether any misuse of powers, privileges or discretion can be objected to as falling outside the purposesand principles of the Charter. Here it is not suggested that the Council was illegally constituted. Further,the Council did not act arbitrarily, but with a sense of purpose and care and impartiality. The mereassertion that it was political, because the interest of States were allegedly involved, is neither here northere. Democratically elected legislative bodies can also be termed political. The mere assertion that theSecurity Council was a political body because in two cases it established judicial tribunals, but in othersimilar cases it did not, does not lead to any such conclusion. Consistency of action is no hallmark of ademocratic process. The right whether and when to establish a limited judicial tribunal to cover a limitedterritory and how many to meet such situations, is the sole privilege of a legislative body. The fact that itdesires to establish one or two to cover certain specific areas, but not another for a different specific area,for certain special reasons, though the situation in the latter may be similar to that in the former, is noground to hold that the legislature has ceased to be or to act as a democratic body. A political will, if thatbe what guides all bodies, invariably serves varying needs and necessities and its decisions need notalways be consistent. The fact that the Security Council did not feel the necessity to establish more thantwo tribunals, does not show it was under the clutches of any political domination. The submission of thecounsel for the appellant that the International Tribunal was thus not established by law, if I may say sowith respect, is ill founded and must be rejected.

70. Another argument which has been advanced is that the Security Council is only obliged to deal withor take action against States, but since the establishment of the International Tribunal deals withindividuals, its establishment suffers from an inherent flaw and the Tribunal must be treated as unlawfullyestablished. Criminal law basically deals with individuals. From the individual, to the family, the tribe andthe State, all rules and norms laid down have placed the individual as the basis of its attention and thesubject of its censure. With the development of human rights and humanitarian law, internationalorganisations dealing with States have placed the States as the subject of their attention and direction.With serious violations of international humanitarian law, international organisations and States have bothattempted to prevent such violations by conventions and State practices, involving States to censure andpunish individuals liable for the breaches. It is true that the United Nations deals as far as possible withStates, but the Charter also shows that it deals with individuals through States. Most of the objects of the

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International Economic and Social Co-operation, as provided in Chapter IX of the Charter, of theInternational Trusteeship System, as stated in Chapter XII, and the declarations regarding Non-Self-Governing Territories, as enumerated in Chapter XI, all point to the interest of individuals, to be serveddirectly through the States concerned or through specialised or international agencies or the TrusteeshipCouncil. The creation of regional arrangements or agencies for dealing with matters relating to themaintenance of international peace and security as are appropriate for regional action, provided suchbodies and their activities are consistent with the purposes and principles of the Charter, is also permittedunder Chapter VIII. The Organisation, therefore, is concerned with individuals and deals with theirinterests through States and ancillary bodies. The creation, therefore, by the Security Council, for and onbehalf of the Member States, by virtue of its delegated authority under Article 24, of a subsidiary organ ofa judicial nature, whose working would impinge on individuals, would not be without jurisdiction. Theobject of the Organisation is to change the whole quality of life, to grant the individual all human rights,to ensure his protection, to advance his welfare and to ensure maintenance of peace and security, allthrough the agency of Member Sates and allied bodies sponsored or recognised by it. The SecurityCouncil has acted on behalf of the States in establishing the International Tribunal for punishing personsguilty of gross international crimes and thus no inherent vice appears in its action.

71. But even if it is to be assumed that the Security Council had no express authority to impinge onindividuals, it is clear that in this case the Council had the implied power to act on individuals on behalfof the States, to establish a tribunal which would deal with natural persons, in the fulfilment of its primaryresponsibility to maintain international peace and security. The theory of implied powers permitsinternational organisations to have these powers, in addition to those explicitly stipulated in theirconstituent instruments. Such powers are implied when they are necessary or essential for the fulfilmentof the tasks or purposes of the organisation or for the performance of its functions or for the exercise ofpowers expressly granted. The International Court of Justice has on several occasions recognised thatinternational organisations have implied powers to take measures necessary to fulfil their functions. Inthis connection, the following cases may be cited with advantage, namely: the case for Reparation forInjuries Suffered in the Service of the United Nations (1949 ICJ Reports 174, p. 177-79) and the case ofthe International Status of South West Africa (1950 ICJ Reports 128, at 136-37). Behind the concept ofimplied powers is the correlation of necessity to bring them into effect. Implied powers can, therefore, bebrought in where it can be shown that they were necessary or essential to the Security Council for theperformance of its functions as outlined in the Charter. In short, that it was essential for the discharge ofits functions. The opinion of the International Court of Justice in the case of the International Status ofSouth West Africa (supra) indicates that the existence of an implied power does not depend on theexercise of the power as the only way, or even the best way, of accomplishing the functions of theorganisation. What is required is a concrete link between the implied power and the functions of theorganisation. The implied powers jurisprudence clearly suggests that the Security Council could, bycreating the International Tribunal, act indirectly on individuals, if it was necessary for the properperformance of its functions. Since the Security Council had found a threat to the peace posed by theconflict in the former Yugoslavia, because of serious violations of international humanitarian law, it foundit necessary to act on individuals through the agency of the International Tribunal to suppress theseviolations. Even otherwise, the character of international humanitarian law imposes a duty to suppressviolation through proper action it may take on individuals. It is now openly recognised that there are actsof omission or commission for which international law imposes criminal responsibility on individuals, forwhich punishment can be imposed. The International Military Tribunal at Nürnberg stated "crimes againstinternational law are committed by men, not by abstract entities, and only by punishing individuals whocommit such crimes can the provisions of international law be enforced." STrial of the Major WarCriminals Before the International Military Tribunal Nürnberg, 14 November 1945 - 1 October 1946,Official Document 223, (1947)C. At this stage it is important to note that the potential accused in theformer Yugoslavia were on notice, through the language of the 1949 Geneva Conventions and the factthat the Security Council had previously demanded the cessation of violations of international

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humanitarian law and had noted the responsibility of individuals for such breaches and had warned thatthey could be held individually responsible for violations thereof. Taking all circumstances intoconsideration, I do not think that this objection of the appellant has any merit. I would therefore reject thesame.

72. I may now deal with another objection. It is stated that the International Tribunal should not have beengranted power to retrospectively punish crimes, and such law is not now countenanced. In fact States nowenact constitutional legislation banning such legislation in the criminal jurisdiction. It is submitted that thecompetence of the Tribunal suffers from such grant of retrospective jurisdiction. It is true that States nowprevent such legislation in the criminal jurisdiction, but where there is no such constitutional bar, Statesgo out of their way to enact such retroactive laws in the criminal jurisdiction. A law can be enforced froma retrospective date or to impinge on matters that have taken place earlier. Article 1 of the Statute clearlystates that "the International Tribunal shall have power to prosecute persons responsible for seriousviolations of international humanitarian law committed in the territory of the former Yugoslavia since1991 in accordance with the provisions of the present Statute." In the Nürnberg Trials such a plea wasraised and rejected, because the Charter authorised trials of offences which had taken place earlier. Thedecision of the Nürnberg Trial is now history and with time has now become international customary law.As stated in the earlier paragraph, all "would-be" accused were on notice, through Resolutions of theSecurity Council, to refrain from committing such crimes. If they chose to do so, they cannot complain ofa statute that now pursues their heinous action. The Nürnberg Trials were the outcome of the LondonAgreement of 1945, which can be termed the law of the victors against the vanquished, but the Statute ofthe International Tribunal is the result of the Security Council action taken on behalf of the MemberStates, in respect of which there can be no grievance. This objection therefore is rejected.

73. It is also contended that the International Tribunal could only have been established by aninternational treaty amongst the Member States, or at least by the General Assembly by an amendment tothe Charter. It is true that the treaty approach appears to be one of the ways of establishing a judicial body,but the alternative way found by the Security Council, as the delegate of all the sovereign Member States,to establish such a tribunal under its Chapter VII powers, cannot be treated as illegal. It is true that thestep may have not met the views of some of the Member States, but no general assault was lodged againstthe measure by any substantial number of members when the Security Council took its decision on 22ndFebruary, 1993, or later after the Statute was approved. In fact the General Assembly was not even movedfor a recommendation to raise an objection to the establishment of the Tribunal. The action beinggrounded in urgent necessity and being within the scope of enforcement action, grants a cover of validityto the establishment of the Tribunal. The other suggestion that the Tribunal could have been establishedby the General Assembly, I am afraid the same would have called for the amendment of the Charter, amore difficult objective to achieve than the purpose for which it was required. Both the submissions,therefore, have no weight and must be rejected.

74. I have no doubt that in creating the International Tribunal, the Security Council acted in accordancewith the purposes and principles of the Charter and the rule of jus cogens. By establishing theInternational Tribunal, the Security Council established a judicial body of international repute, totallycompetent and impartial, for the purpose of solving a core fundamental humanitarian issue, i.e., theflagrant violation of basic norms of international humanitarian law, a project for which it must becommended. The creation of the International Tribunal was a reasonable and necessary step in the light ofthe threat to the peace, which was identified also by the Security Council. For all these reasons, I wouldreject the submission of the appellant’s counsel that the International Tribunal was not lawfullyconstituted. In this view of the matter, the two Resolutions of the Security Council, being legal andproper, must be allowed to stand unhindered. No further declaration or action is required from thisTribunal.

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75. For the reasons set forth above, I disagree with the Trial Chamber’s view that this Tribunal does nothave the authority to assess the legality of its own establishment by the Security Council. The Tribunal isdifferent from other subsidiary organs created by the principal organs of the United Nations because it isnot subject to control with respect to the performance of its judicial functions. Rather, it is an independentbody which has inherent jurisdiction to examine its competence. If the Tribunal was illegally established,its jurisdiction would have been invalid. To ensure that the Tribunal does not exercise an invalidjurisdiction, I have been compelled to examine the matter collaterally.

76. Although the Trial Chamber did not believe it had the authority to review the Security Council’screation of the Tribunal, it nonetheless made some comments on the defence’s assertions on this matter. Iagree with the Trial Chamber that the Security Council’s actions in creating the Tribunal were clearly notarbitrary and that, due to the nature of the conflict, the creation of the Tribunal was an appropriatemeasure for restoring a lasting peace to the region. As set out in detail above, I also agree with the TrialChamber’s reasoned rejection of the appellant’s arguments on establishment of the Tribunal via treaty orby the United Nations General Assembly, the United Nations’ authority to act on individuals and theSecurity Council’s authority and ability to create an impartial judicial body. Finally, for the reasonsdiscussed above, I believe that the appellant’s contention that the accused’s right to be tried by a tribunalestablished by law required the Tribunal to have been established by a democratically elected legislatureshould be rejected.

THE QUESTION OF PRIMACY

77. Now I come to the question of primacy. In the written submissions filed by the appellant, the appellanthas contested the power of the Security Council, even if the establishment of the International Tribunal betreated as within its legal powers, to vest the Tribunal with jurisdiction of a generally primary nature overdomestic jurisdiction. It is submitted that the Tribunal being of an ad hoc character, is an inferior legaltribunal compared to domestic judicial organs and that the Security Council failed to resolve thefundamental right of the appellant to be tried by a tribunal established by law. It is asserted that theInternational Tribunal could not have been given primacy over domestic jurisdiction, if the case againstthe appellant in the domestic jurisdiction could have been prosecuted diligently and the said Tribunal wasimpartial and independent and otherwise not designed to shield him from international responsibility. It isfurther contended that the acceptance of the jurisdiction of the International Tribunal by the FederalRepublic of Germany and the Republic of Bosnia-Herzegovina is only relevant if those states could havewaived their sovereign rights without violating the international rights enjoyed by the appellant whichwere otherwise available to him in international law. It is submitted that the said States concerned couldnot have waived the appellant’s rights which were vesting in him under international law. It is lastlycontended that the Trial Chamber should have denied its competence to exercise primacy while theaccused was in the custody of the judicial authorities in the Federal Republic of Germany and the saidauthorities were adequately meeting the obligations under international law. The appellant contests theTrial Court’s order.

78. An important matter first requires to be sorted out before the plea that the International Tribunal couldnot have been granted primacy over national courts is taken up. Initially the appellant took up thisobjection before the Trial Chamber as an independent ground of attack. The Trial Chamber in itsjudgement, dealt with this plea under the main heading "I: The Establishment of the InternationalTribunal", under which under sub-heading "A" it dealt with "Legitimacy of Creation" and under sub-heading "B" it dealt with "Primacy of the Tribunal." It then took up under main heading "II: GraveBreaches of the Geneva Convention." In the concluding disposition, however, it dismissed the motioninsofar as it related to primacy jurisdiction and subject matter jurisdiction under Articles 2, 3 and 5, but

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decided it was incompetent insofar as it challenged the establishment of the International Tribunal. Theinclusion of arguments relating to primacy under main heading "I" may be due to inadvertence, or perhapsthe counsel for the appellant argued it under this head. In the written brief submitted to the AppealsChamber, the appellant has dealt with this objection under a two pronged attack. First, that the SecurityCouncil could not have granted primacy to the Tribunal and second, that the Trial Chamber should havedenied its competence to exercise primary jurisdiction over the appellant. Due to the first ground, theProsecutor has raised the objection that the appeal qua primacy is incompetent under Rule 72 (B), as itdoes not relate to lack of jurisdiction. It is clear that the plea of primacy is being raised on two groundsand not on the sole ground that the Security Council could not grant primacy to the Tribunal. I havealready held in para. 33 above that the International Tribunal is competent to inquire into the facts asregards its lawful establishment, because if it should find that the Tribunal is not lawfully established, itwould affect its validity as a legal body to do justice and also to exercise powers granted to it by theStatute. The matter ultimately comes down to lack of jurisdiction. In these circumstances, I would treatthis objection as also one extending to lack of jurisdiction. Since the challenge is on two grounds I do notthink that any technical objection should stand in the way of the same being heard on alternate grounds. Iwould, therefore, deal with the matter on that basis and would reject the Prosecutor’s plea that the appealis incompetent.

79. Before I take up the arguments, an examination of Articles 9 and 10 of the Tribunal’s Statute arerelevant in this respect. The same are reproduced below:

"Article 9

Concurrent Jurisdiction

(1) The International Tribunal and national courts shall have concurrent jurisdiction toprosecute persons for serious violations of international humanitarian law committed in theterritory of the former Yugoslavia since 1 January 1991.

(2) The International Tribunal shall have primacy over national courts. At any stage of theprocedure, the International Tribunal may formally request national courts to defer to thecompetence of the International Tribunal in accordance with the present Statute and the Rulesof Procedure and Evidence of the International Tribunal."

"Article 10

Non-bis-in-idem

(1) No person shall be tried before a national court for acts constituting serious violations ofinternational humanitarian law under the present Statute, for which he or she has already beentried by the International Tribunal.

(2) A person who has been tried by a national court for acts constituting serious violations ofinternational humanitarian law may be subsequently tried by the International Tribunal onlyif:

(a) the act for which he or she was tried was characterised as an ordinary crime: or

(b) the national court proceedings were not impartial or independent, were designed to shieldthe accused from international criminal responsibility, or the case was not diligentlyprosecuted.

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(3) In . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . "

80. Rules 8, 9 and 10 of the Tribunal’s Rules of Procedure and Evidence are also relevant in this respectand are reproduced below:

"Rule 8

Request for Information

Where it appears to the Prosecutor that a crime within the jurisdiction of the Tribunal is or has been thesubject of investigations or criminal proceedings instituted in the courts of any State, he may request theState to forward to him all relevant information in that respect, and the State shall transmit to him suchinformation forthwith in accordance with Article 29 of the Statute."

"Rule 9

Prosecutor’s Request for Deferral

Where it appears to the Prosecutor that in any such investigations or criminal proceedings instituted in thecourts of any State:

(i) the act being investigated or which is the subject of those proceedings is characterised asan ordinary crime;

(ii) there is a lack of impartiality or independence, or the investigations or proceedings aredesigned to shield the accused form international criminal responsibility, or the case is notdiligently prosecuted; or

(iii) what is in issue is closely related to, or otherwise involves, significant factual or legalquestions which may have implications for investigations or prosecutions before the Tribunal,

the Prosecutor may propose to the Trial Chamber designated by the President that a formal request bemade that such court defer to the competence of the Tribunal."

"Rule 10

Formal Request for Deferral

(A) If it appears to the Trial Chamber seized of a proposal for deferral that, on any of thegrounds specified in Rule 9, deferral is appropriate, the Trial Chamber may issue a formalrequest to the State concerned that its court defer to the competence of the Tribunal.

(B) A request for deferral shall include a request that the results of the investigation and acopy of the court’s records and the judgement, if already delivered, be forwarded to theTribunal.

(C) Where deferral to the Tribunal has been requested by a Trial Chamber, any subsequenttrial shall be held before the other Trial Chamber."

81. A review of the above provisions shows that (i) both the International Tribunal and the national courtshave concurrent jurisdiction to prosecute persons for serious violations of international humanitarian lawcommitted in the territory of the former Yugoslavia since 1 January 1991; (ii) the International Tribunal

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has primacy over national courts in this respect, but not vice versa, iii) where it appears that ininvestigations or criminal proceedings instituted in national courts, the act being investigated or which isthe subject of those proceedings is characterised as an ordinary crime, or there is a lack of impartiality orindependence, or the investigations or proceedings are designed to shield the accused from internationalcriminal responsibility, or the case is not diligently prosecuted, or what is in issue is closely related to, orotherwise involves, significant factual or legal questions which may have implications for investigationsor prosecutions before the Tribunal, the International Tribunal may request the State concerned that itscourt defer to the competence of the Tribunal, but the national court cannot so request for a deferral; and(iv) the International Tribunal is not mandatorily bound to enforce primacy in all cases, for it can permitthe national courts to judge the accused for themselves.

82. As regards cases decided by national courts, the right of the International Tribunal to retry the accusedand claim competence for itself is also there, but since the appellant’s case does not fall in this category, Ineed not discuss the scope of the relevant law in this respect.

83. At the root of primacy is a demand for justice at the international level by all States which constitutesthe first step towards implementation of international judicial competence. The rule enhances the role ofthe Prosecutor in giving him a right to move for transfer of competence and to the International Tribunalthe option whether to exercise its discretion to secure competence for itself. The rule obliges States toaccede to and accept requests for deferral on the ground of suspension of their sovereign rights to try theaccused themselves and compels States to accept the fact that certain domestic crimes are reallyinternational in character and endanger international peace and that such international crimes should betried by an international tribunal, that being an appropriate and competent legal body duly established forthis purpose by law. The rule cuts national borders to bring to justice persons guilty of seriousinternational crimes, as they concern all States and require to be dealt with for the benefit of all civilisednations. Last but not least, the rule recognises the right of all nations to ensure the prevention of suchviolations by establishing international criminal tribunals appropriately empowered to deal with thesematters, or else international crimes would be dealt with as ordinary crimes and the guilty would not beadequately punished.

84. I would turn now to the arguments. Before examining the matter, it is necessary to refer to certainprovisions of the Charter of the United Nations which are relevant in this respect. Under Article 2(1) ofthe Charter, the United Nations Organisation is based on the principle of the sovereign equality of all itsMembers. Under Article 24(1), the Member States, to ensure prompt and effective action by the UnitedNations, have conferred on the Security Council primary responsibility for the maintenance ofinternational peace and security and have to that effect agreed that the Security Council in carrying out itsduties under this responsibility will be deemed to be acting on their behalf. Under Article 25, the MemberStates have agreed to accept and carry out the decisions of the Security Council in accordance withChapter VII. Under Article 2(2), all the Member States, in order to ensure for themselves the rights andbenefits resulting from membership, have agreed to fulfil in good faith the obligations assumed by themin accordance with the Charter.

85. The right of a State to try its own nationals or persons within its jurisdiction who have committedserious offences, whether within the territories of that State or without, is a sovereign right. Where theoffences are committed outside its territories, the State has a right to enact laws making the offencestriable within its own jurisdiction.

86. The first question that arises is whether the Security Council could have given primacy of jurisdictionto the International Tribunal. It cannot be denied that under Article 24(1) of the Charter, Member Statestransferred their sovereign rights to the Security Council when it took Chapter VII proceedings on theirbehalf to establish the Tribunal and agreed to be bound by the Council’s decisions. In the instant case the

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transfer of sovereign rights included the rights which States had in respect of trial of accused persons forserious offences against international humanitarian law which they may have committed and for whichthey were liable within their respective jurisdictions. In view of Article 2(7) of the Charter, the intrusionof the United Nations in matters affecting the sovereign rights of Member States is legal and permissible,if the matters pertain to Chapter VII proceedings. Under Article 39, the Security Council is the sole judgeof the existence of any threat to the peace, breach of peace or act of aggression and solely responsible formaking recommendations and deciding what matters should be taken in accordance with Articles 41 and42 to maintain and restore international peace and security. The fact that the Security Council in itsdiscretion did find the existence of a threat to the peace in respect of the situation in the formerYugoslavia and set up the International Tribunal with the limited purpose of dealing with seriousviolations of international humanitarian law committed in those territories from 1 January, 1991,suspended the sovereign rights of all Member States of the United Nations to try persons over whomprimacy was granted to the International Tribunal. The Security Council was thus competent to grantprimacy to the International Tribunal and I would hold accordingly.

87. It must not be forgotten that whilst Article 2(1) prohibits the Organisation from interfering in matterswhich are within the domestic jurisdiction of States, this principle is not applicable when the SecurityCouncil adopts enforcement measures under Chapter VII. At best what can be prevented in such asituation is a disrespect for human rights and norms. Certain articles of the International Covenant onCivil and Political Rights (1966), the European Convention on Human Rights and of the ConventionAgainst Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (1984) contain certainimportant provisions which are binding on all States, from which they cannot derogate even in times ofthe gravest emergency, and one would imagine that such of them that ensure a fair trial and protection ofthe rights of the accused bound the Security Council to ensure their non-violation in the Statute of theInternational Tribunal which they drafted. Other than this, the appellant was not entitled to any otherguarantees arising out of the suspension of State sovereignty because of primacy being conferred on theInternational Tribunal.

88. The right to try an accused and to define and establish offences for which he can be tried and punishedis that of the State. If a State desires to challenge the forfeiture or suspension of its sovereign right, italone has the right to press such a claim; for the individual has none. SSee Israel v Eichmann, 36 I.L.R. 5Z 62 - (1961)C. The right to certain important protections flowing out of human rights and humanitarianlaws out of the developments that have taken place in international law over the last few decades, is thatof the accused. If certain sovereign rights of Member States stood suspended by the Security Council’saction in establishing an international criminal tribunal and granting it primacy over domestic courts, therights of the accused, as stated above, did not stand suspended, who could claim their protection.

89. This brings me to the question whether the Security Council, in drafting the Statute of theInternational Tribunal, ensured the protection of the appellant’s rights flowing out of human rights andnorms. One distinct violation has been referred to by the appellant in respect of his objection as regardsthe illegality of the Tribunal’s establishment. That has been answered against him. Otherwise, none elsehas been referred. The Statute of the Tribunal grants all protections possible to the appellant. In thisrespect, observations made by me in paras 33 and 68 are relevant and may be referred to. So no importantrights of the appellant to human rights or norms stand violated. Assuming, though not admitting, that theappellant has any such rights available by way of representation or appeal that he can make or prefer inthis respect before any international regional body created for the purpose of protection of human rights,they are non esse, because of the original and appellate jurisdictions granted to the International Tribunal,where the appellant can urge such claims and because the said International Tribunal supersedes suchother regional bodies on the basis of its having special subject matter competence over criminal matters.

90. Another argument pressed is that the States of Germany and Bosnia-Herzegovina were competent to

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try the appellant, that both had jurisdiction to try the appellant for the same serious violations for whichthe appellant is being sought to be tried by this Tribunal, that the appellant was at trial in the State ofGermany and that that State was meeting its obligations to try him fairly and not using the proceedings toshield him in any way. It is true that the appellant, at the time the request for deferral was made, was notbeing tried by the German authorities, but was the subject of investigation. The reference to the appellantbeing tried appears to be an inadvertent error. However, the position remains that the appellant did notobject to the Tribunal’s claim for primacy when the request for deferral was being debated. The Germanauthorities acceded to the Tribunal’s request. As far as Bosnia-Herzegovina is concerned, which also hasthe right to try the appellant for the relevant international crimes, as they were committed within itsterritories, it also did not file a caveat contesting the Tribunal’s claim to primacy. Even otherwise, theappellant is not a citizen or national of Bosnia-Herzegovina and can hardly claim protection under the flagof that State. Both States have no objection to the International Tribunal trying the appellant. Both havenot objected to the suspension of their sovereign rights to try the appellant arising out of the Council’saction in granting primacy to the Tribunal. The appellant has no locus standi to plead for these States. Theobjection, therefore, has no force and must be rejected.

91. As regards the plea that as a result of the illegal competence of the International Tribunal to prosecutepersons for violation of international humanitarian law, such persons will be denied the right to be tried bytheir national courts, whether in the general jurisdiction or by transfer to some special jurisdiction, it is ofno relevance here, as the rule of jus de non evocando is relative to national jurisdictions. This rulecompels States to ensure that an accused be tried by the regularly established courts and not by specialtribunals set up for that purpose. Where such special courts are set up validly by superior legislatures andthe law is not discriminatory such as to deny the accused a fair trial, the validity of such special courtsmay not perhaps come under cloud. Whatever be the situation, the establishment of an internationalcriminal tribunal to which States have granted rights of primacy and thus surrendered their sovereignrights to try certain types of accused for certain designated offences, which would normally fall withintheir jurisdictions, the jus de non evocando rule becomes non esse.

92. As regards the objection that the Trial Chamber wrongly exercised jurisdiction in acceding to theProsecutor’s request to claim primacy, nothing has been pleaded that has not already been dealt with andrejected. It does not appear that the discretion exercised by the Trial Chamber was arbitrary or unfair. Thisobjection, therefore, has no force.

93. To conclude, I would hold that the Security Council was competent to grant primacy to theInternational Tribunal. This being a question of law, the claim for estoppel is rejected. There is noestoppel against law.

94. For the reasons set forth above, I agree with the Trial Chamber’s view that the appellant does not havestanding to raise the sovereign rights of States — especially States who have not objected to thesuspension of such rights — with respect to primacy of jurisdiction. In addition, I would point out thatArticle 2 (7) of the United Nations Charter would prevent the claim of domestic jurisdiction againstSecurity Council enforcement action under Chapter VII and that the principle of jus de non evocando isnot applicable where States have given up their sovereign right to try certain offences to the Tribunal.

LACK OF SUBJECT-MATTER JURISDICTION

95. In the brief submitted by the appellant it is stated that he desires to challenge the subject-matterjurisdiction of the International Criminal Tribunal in respect of the following acts:-

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wilful killing - Article 2 (a) of the Statute;

torture or inhumane treatment - Article 2 (b) of the Statute,

wilfully causing great suffering or serious injury to body or health - Article 2 (c)

of the Statute

murder, cruel treatment and torture as breaches of Common Article 3 (1) (a)

of the Geneva Conventions - Article 3 of the Statute

murder - Article 5 (a) of the Statute

torture - Article 5 (f) of the Statute

rape - Article 5 (g) of the Statute, and

inhumane acts - Article 5 (i) of the Statute

committed during the period 27th May 1992 and 3rd August 1992.

96. On behalf of the appellant it is contended that Article 2 (a), (b) and (c) of the Statute relate to commonArticle 2 of the Geneva Conventions of 1949 and covers only offences committed in internationalconflicts. It is next contended that violations of Article 3 of the Statute are only within the jurisdiction ofthe International Tribunal if the identical prohibitions of the 1907 Hague Convention Regulations havebeen violated, casu quo identical crimes of Article 6 (b) of the Nüremburg Charter have been committed.It is submitted that Article 5 (a), (f), (g) and (i) of the Statute relate to crimes committed in armed conflict,whether international or internal in character. It is, however, submitted that an armed conflict, whetherinternational or internal, did not exist at any relevant time in respect of the place where the appellant isalleged to have committed the offences. In this connection it is urged that the argument that no armedconflict existed at any relevant time or place, is not only valid with regard to the offences under Article 5of the Statute but at least implicitly and subsidiarily also in relation to offences under Articles 2 and 3 ofthe Statute. It is contended that the International Criminal Tribunal did not have subject-matterjurisdiction under Article 2 (a) (b) and (c) of the Statute, nor under Article 3 of the Statute, nor underArticle 5 (a), (f), (g) and (i) of the Statute to try the accused for the indicted acts.

97. It may be stated here that the Trial Chamber, in its judgement, concluded that Article 2, 3 and 5 eachapplied to both international and internal armed conflicts and it concluded that it had jurisdiction,regardless of the nature of the conflict, and that it did not have to decide whether the conflict was internalor international.

98. The facts leading up to the establishment of the International Tribunal have already been stated earlier.Certain resolutions especially relating to subject-matter jurisdiction were not incorporated in those facts. Itis therefore, necessary when dealing with this subject to refer to those resolutions and I do so accordingly.

99. By Resolution 764 (1992) of 13th July 1992, the Security Council reaffirmed that all parties to theconflict were bound to comply with their obligations under international humanitarian law and inparticular the Geneva Conventions of 12th August 1949, and that persons who had committed or hadordered the commission of grave breaches of the Conventions were individually responsible in respect ofsuch breaches. By Resolution 771 (1992) of 13th August 1992, the Security Council expressed gravealarm at continuing reports of widespread violations of international humanitarian law occurring within

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the territory of the former Yugoslavia and condemned violations of the same, including those involved inthe practice of "ethnic cleansing", and demanded that all parties to the conflict and others concerned desistfrom all breaches of international humanitarian law. By Resolution 780 (1992) of 6th October 1992, theSecurity Council requested the Secretary-General to establish an impartial Commission of Experts, toprovide him with its conclusions on the evidence of grave breaches of the Geneva Conventions and otherviolations of international humanitarian law committed in the territory of the former Yugoslavia. On 26thOctober 1992, the Secretary-General announced the appointment of the Chairman and members of theCommission of Experts. By letter dated 9th February 1993, the Secretary-General submitted to thePresident of the Security Council an interim report of the Commission of Experts which concluded thatgrave breaches and other violations of international humanitarian law had been committed in the territoryof the former Yugoslavia and that should the Security Council or other competent organ of the UnitedNations decide to establish an ad hoc International Tribunal, such a decision would be consistent with thedirection of its work. It was against this background that Resolution 808 (1993) of 22nd February, 1993,was passed wherein the Security Council expressed once again its grave alarm at continuing reports ofwidespread violations of international humanitarian law occurring within the territory of the formerYugoslavia and determined that the situation constituted a threat to international peace and security andstated that it was determined to put an end to such crimes and to take effective measures to take to justicethe persons who were responsible for them. Against this background, the Security Council decided toestablish an international tribunal so that it could contribute to the restoration and maintenance of peace.The Secretary-General, after taking into consideration a host of reports submitted by Member States, othergovernments, commissions, rapporteurs, law societies, non-governmental and other bodies, jurists, etc.,ultimately put up a Report on 25th May 1993, before the Security Council. The report referred to theearlier Resolutions and steps taken as stated above. Pursuant to this report, the Security Council byResolution 827 (1993) of 25th May, 1993, approved the report of the Secretary-General, decided toestablish the International Tribunal for the sole purpose of prosecuting persons responsible for seriousviolations of international humanitarian law committed in the territory of the former Yugoslavia between1 January 1991 and a date to be determined by the Security Council upon the restoration of peace and tothat end adopted the Statute of the International Tribunal, annexed to the Secretary-General’s report. ByResolution 820 (1993) of 17th April 1993, the Security Council once again condemned violations ofinternational humanitarian law, including in particular the practice of ethnic cleansing that was going onin the former Yugoslavia.

VIOLATIONS OF INTERNATIONAL HUMANITARIAN LAW

AS BASIS FOR THE OFFENCES

100. At this stage, it may be mentioned that the report submitted by the Secretary-General, in respect ofoffences proposed in Articles 2 to 5 of the Tribunal’s draft Statute, referred to the basis on which he hadstructured the offences in order to give competence rationae materiae to the International Tribunal. Thisis what he stated in this respect in paras. 33 to 35:-

33. According to paragraph 1 of resolution 808 (1993), the International Tribunal shallprosecute persons responsible for serious violations of international humanitarian lawcommitted in the territory of the former Yugoslavia since 1991. This body of law exists in theform of both conventional law and customary law. While there is international customary lawwhich is not laid down in conventions, some of the major conventional humanitarian law hasbecome part of customary international law.

34. In the view of the Secretary-General, the application of the principle nullum crimen sine

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lege requires that the international tribunal should apply rules of international humanitarianlaw which are beyond any doubt part of customary law so that the problem of adherence ofsome but not all States to specific conventions does not arise. This would appear to beparticularly important in the context of an international tribunal prosecuting personsresponsible for serious violations of international humanitarian law.

35. The part of conventional international humanitarian law which has beyond doubt becomepart of international customary law is the law applicable in armed conflict as embodied in:the Geneva Conventions of 12 August 1949 for the Protection of War Victims; the HagueConvention (IV) Respecting the Laws and Customs of War on Land and the Regulationsannexed thereto of 18 October 1907; the Convention on the Prevention and Punishment of theCrime of Genocide of 9 December 1948; and the Charter of the International MilitaryTribunal of 8 August 1945."

101. From the above, it is apparent that from various resolutions passed from July 1992 onwards up to25th May, 1993, the thinking or opinion was that the International Tribunal was intended to prosecutepersons responsible for serious violations of international humanitarian law committed in the territory ofthe former Yugoslavia since 1991. This being the thinking or opinion of the members of the SecurityCouncil all along and this being also the view of the Secretary-General, constitutes the first foundationinsofar as it pertains to the structuring of the offences. Thus, what is clear is that the offences had toconstitute serious violations of international humanitarian law.

102. At this stage, it may be stated that references in the various resolutions of the Security Council to theconflict being international or internal, were not definitive. It cannot be therefore stated with certainty thatthe Security Council treated the conflict as international as legally decisive of that situation.

103. This is what the Statute of the International Tribunal says about international humanitarian law. Thepreamble to the Statute states:-

"Having been established by the Security Council acting under Chapter VII of the Charter of the UnitedNations, the International Tribunal for the Prosecution of Persons Responsible for Serious Violations ofInternational Humanitarian Law Committed in the Territory of the Former Yugoslavia since 1991(hereinafter referred to as the "International Tribunal") shall function in accordance with the provisions ofthe present Statute."

Article 1 states:-

"Article 1

Competence of the International Tribunal

The International Tribunal shall have the power to prosecute persons responsible for seriousviolations of international humanitarian law committed in the territory of the formerYugoslavia since 1991 in accordance with the provisions of the present Statute."

Article 9 states that the Tribunal and the national courts shall have concurrent jurisdiction to prosecutepersons for serious violations of international humanitarian law. The rule of non-bis-in-idem, covered byArticle 10, again refers to serious violations of international humanitarian law. Article 16, which dealswith the Prosecutor’s powers, also states that he shall be responsible for the investigation and prosecutionof persons responsible for serious violations of international humanitarian law. What is therefore withinthe jurisdiction of the International Tribunal are serious violations of international humanitarian law.

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SECRETARY-GENERAL’S TREATMENT OF EACH OF OFFENCES

104. Now I turn to the Secretary-General’s treatment of each of the offences. With regard to Article 2 ofthe International Tribunal’s Statute, i.e. "Grave breaches of the Geneva Conventions of 1949", theSecretary-General reported in paras. 37 to 39 of his report as follows:-

"37. The Geneva Conventions constitute rules of international humanitarian law and providethe core of the customary law applicable in international armed conflicts. These Conventionsregulate the conduct of war from the humanitarian perspective by protecting certaincategories of persons: namely, wounded and sick members of armed forces in the field;wounded, sick and shipwrecked members of armed forces at sea; prisoners of war, andcivilians in time of war.

38. Each Convention contains a provision listing the particularly serious violations thatqualify as "grave breaches" or war crimes. Persons committing or ordering grave breaches aresubject to trial and punishment. The lists of grave breaches contained in the GenevaConventions are reproduced in the article which follows.

39. The Security Council has reaffirmed on several occasions that persons who commit ororder the commission of grave breaches of the 1949 Geneva Conventions in the territory ofthe former Yugoslavia are individually responsible for such breaches as serious violations ofinternational humanitarian law."

105. With regard to Article 3 of the International Tribunal’s Statute i.e., "Violations of the laws orcustoms of war", this is what the Secretary-General stated in paras. 41 to 43 of his report:-

"41. The 1907 Hague Convention (IV) Respecting the Laws and Customs of War on Landand the Regulations annexed thereto comprise a second important area of conventionalhumanitarian international law which has become part of the body of international customarylaw.

42. The Nürnberg Tribunal recognised that many of the provisions contained in the HagueRegulations, although innovative at the time of their adoption were, by 1939, recognised byall civilised nations and were regarded as being declaratory of the laws and customs of war.The Nürnberg Tribunal also recognised that war crimes defined in article 6(b) of theNürnberg Charter were already recognised as war crimes under international law, andcovered in the Hague Regulations, for which guilty individuals were punishable.

43. The Hague Regulations cover aspects of international humanitarian law which are alsocovered by the 1949 Geneva Conventions. However, the Hague Regulations also recognisethat the right of belligerents to conduct warfare is not unlimited and that resort to certainmethods of waging war is prohibited under the rules of land warfare."

106. I need not discuss the comments made in the Secretary-General’s report regarding what he statedabout "Genocide", as the appellant has not been indicted under Article 4.

107. With regard to Article 5 i.e., the "Crimes against humanity", this is what the Secretary-General statedin paras. 47 to 49 of his report:-

"47. Crimes against humanity were first recognised in the Charter and Judgement of the

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Nürnberg Tribunal as well as in Law No. 10 of the Control Council for Germany. Crimesagainst humanity are aimed at any civilian population and are prohibited regardless ofwhether they are committed in an armed conflict, international or internal in character.

48. Crimes against humanity refer to inhumane acts of a very serious nature, such as wilfulkilling, torture or rape, committed as part of a widespread or systematic attack against anycivilian population on national, political, ethnic, racial or religious grounds. In the conflict inthe territory of the former Yugoslavia, such inhumane acts have taken the form of so-called‘ethnic cleansing’ and widespread and systematic rape and other forms of sexual assault,including enforced prostitution."

108. From the above it is apparent that from various resolutions passed from July 1992 onwards till thereport of the Secretary-General was presented on 25th May 1993, the thinking or opinion amongst themembers of the Security Council was clear that an international criminal tribunal was to be established toprosecute persons responsible for serious violations of international humanitarian law committed in theterritory of the former Yugoslavia. However, when the report was presented by the Secretary-General on25 May 1993, he clarified a number of matters, which he explained in paras. 33 to 35 of his report. Forinstance, he stated that international humanitarian law existed in both the form of conventional law andcustomary law and that while there was international customary law which was not laid down inconventions, some of the major conventional humanitarian law had become part of customaryinternational law. It is, therefore, clear that he regarded some of the conventional humanitarian law orperhaps some provisions thereof as yet not a part of customary international law. Since he wanted to makesure that the rule of nullum crimen sine lege did not obstruct the working of the International Tribunal, hewanted to ensure that only international humanitarian law, which was beyond any doubt a part ofcustomary law, should alone constitute the basis for the offences which he had provided in the draft of theTribunal’s Statute. This was necessary in order to show that the Tribunal was to prosecute offences whichhad previously stood established, that violators could therefore be deemed to have knowledge thereof andthe creation of the Tribunal was only an enforcement measure to bring them to book and nothing else. Healso made it clear that since the offences had been structured out of that part of international humanitarianlaw which constituted international customary law, any charge that the Security Council was legislatingnew laws would not hold good. The Secretary-General, in subsequent paragraphs of his report, then dealtwith the basis on which each of the offences referred to in the draft Statute of the International Tribunal,such as Articles 2 to 5, had been structured. This was necessary as the tribunal to be established was notone of general international jurisdiction with powers to decide an open range of criminal offences, but aspecial tribunal with limited territorial, temporal and subject matter jurisdictions. What were the specificfeatures of each of the offences and the basis on which they were structured, therefore, were spelt out.These features added a new dimension to the thinking or opinion of the members of the Security Council.On the basis of the earlier thinking or opinion and the new representations that were made by theSecretary-General, the members of the Security Council took a decision. These representations, therefore,constitute the second foundation insofar as it pertains to the structuring of the offences. They, therefore,have a strong bearing, when it comes to the interpretation of any of these offences.

RULES AS TO INTERPRETATION OF CONSTITUTION OF

AN INTERNATIONAL BODY

109. In the field of international law, any organisation or body created by a treaty or some form ofenactment must examine its own constitution to appraise or assess what the whole or any part thereofmeans and not first look to extraneous sources to come to any conclusion. The constitution or its relevant

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part should be examined in good faith in accordance with the ordinary meaning in the context in which itappears and in the light of its objects and purposes. If there appears some confusion, any prior agreementsor instruments between the parties, or, as in this particular case, the report of the Secretary-General andthe debate of the members of the Security Council thereon, can be examined. This brings to the fore whatthe Secretary-General represented to the members of the Security Council by presenting his views and thedraft of the Statute and what the members, on the basis of that representation, debated, when they adoptedthat draft. If any serious ambiguity still remains, reference to rules relating to interpretation ofinternational statutes or other material can be resorted to. A tribunal having international criminaljurisdiction should be careful not to convert itself into a free or general advisory body. It’s enunciation ofthe law must be on a case to case basis and limited to the lis before it. A matter which should normally bedecided on the basis of law and evidence, should not be foreclosed by an enunciation of law by a superiortribunal which may have the effect of pre-empting the rights of the parties to have the matter properlyappraised by the lower chamber. The International Court of Justice, by Article 96 of the United Nations’Charter, has an advisory capacity. Civil and criminal courts basically have none, unless it is directed bylaw or is directly relevant to a particular matter in a case, which it would do only in a lis and that too afterthe parties were given a proper opportunity to produce evidence in the matter, if they proposed to do so.

ARTICLE 2 OF THE STATUTE

110. I would now examine Article 2 of the Statute as it stands. It clearly refers to the four GenevaConventions of 12 August, 1949, the grave breaches of the said Conventions as listed is paras. (a) to (h)and the said breaches as being committed against persons or property protected under the provisions ofthe relevant Conventions. The expression "grave breaches" can be treated as used in the general or genericsense i.e., serious breaches, but there are serious breaches to be found in common Article 3 of the GenevaConventions and some which may be found in the other provisions of the said Conventions. But only oneprovision in each of the four Geneva Conventions refers to "grave breaches" (Article 50 of the FirstConvention, Article 51 of the Second Convention, Article 130 of the Third Convention and Article 147 ofthe Fourth Convention). In respect of the "grave breaches", the Conventions provide that all States to theConventions shall enact national legislation to provide penal sanctions against persons committing orordering to be committed such offences, and to punish them for the same and to hand over such persons toanother State making such a demand. As regards violations of the other provisions of the Conventions, theConventions only provide that all States shall take measures to suppress them. It is, therefore, clear thatthe list of offences referred to in paras. (a) to (h) under Article 2 of the Statute has no relevancy withserious or grave breaches, as used in the general sense, but "grave breaches" in the technical sense orcontext as stated in the relevant articles of the Conventions. If we examine the offences under paras. (a) to(h), it is clear that they fall under one or more of the Articles in the Conventions enumerating the categoryof "grave breaches." Article 2 is not self contained. Its meaning only becomes clear by reference to theConventions. This is a case of legislation by reference. The offences, therefore, listed under Article 2 arethose that specifically fall under and are treated as "grave breaches" in the Geneva Conventions of 1949and are those that can be committed only in an international armed conflict. This is the interpretation on astraight evaluation of the Article.

111. To test the above appraisal, I may turn to what happened in the Security Council. The report of theSecretary-General clearly states that the Geneva Conventions constitute rules of internationalhumanitarian law and provide the core of the customary law applicable in international armed conflicts.He then mentions that each Convention contains a provision listing the particularly serious violations thatqualify as "grave breaches" or war crimes and that the lists of grave breaches contained in the GenevaConventions have been reproduced in the article (Article 2) he has drafted. He concludes that earlier onseveral occasions also the Security Council had reaffirmed that persons who committed or ordered the

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commission of grave breaches of the 1949 Geneva Conventions in the territory of the former Yugoslaviawere individually responsible for such breaches as serious violations of international humanitarian law. Itis clear from these representations that Article 2 was structured on the basis that the four GenevaConventions constituted the core of the customary law applicable in international armed conflicts and thatthe grave breaches which constituted the particularly serious violations of war crimes, obviously related tooffences in the field of international armed conflict. It is, therefore, not proper to interpret Article 2 of theStatute outside the scope of the Secretary-General’s report and the decision of the members of theSecurity Council, or to look for any other hypothesis to hold otherwise.

112. I would, therefore, hold that article 2 of the International Tribunal’s Statute covers offences whichare treated as "grave breaches" in the 1949 Geneva Conventions, provided they are perpetrated againstpersons or property protected by the said Conventions, and that these offences are those that arecommitted in an international armed conflict.

ARTICLE 3 OF THE STATUTE

113. I now examine Article 3 of the Statute as it stands. It speaks of violations of "the laws or customs ofwar." Both are included i.e., the laws of war and the customs of war and the two are used incontradistinction to each other by the conjunction "or" in between. Thus, two sources are intended, thelaws of war and the customs of war as prevailing at the international level. What are the laws of war?They are no more than rules and regulations setting forth the norms constituting the modes, methods andconduct of warfare and prohibitions connected therewith. They would include (a) treaties, conventions,agreements, declarations and protocols (b) constitutions and statutes of international war crimes tribunalsand (c) decisions of international judicial tribunals. The 1907 Hague Convention (IV) respecting the Lawsand Customs of War on Land and the Regulations annexed to it, the four Geneva Conventions of 1949and the two Additional Protocols I and II, the decision of the Nürnberg and Tokyo Tribunals and a host ofinternational declarations, treaties, conventions and rules entered into by States (most of which are listedin the book "Documents on the Laws of War" by Adam Roberts and Richard Guelff) all constitute laws ofwar. I would exclude national manuals of military law, because they do not have an internationalcharacter, although they may have a function in providing evidence of the law.

114. The customs of war are those which arise out of State practices extending over a period of time,coupled with opinio juris. Where a certain practice followed by a number of States in the internationalcommunity over long user or a period of time has established a status as to be regarded by them as legallyobligatory or binding, an international custom develops. Though this is the normal interpretation, Statepractices may consist of treaties, decisions of international and national courts, national legislation,diplomatic correspondence, practice of international organisations (I.L.C. Year Book, 1950, II, pp. 368-372), policy statements, official manuals on legal questions (e.g. manuals of military law), executivedecisions and practices, orders to the armed forces, etc., and comments by governments on drafts of theInternational Law Commission. SBrownlie Principles of Public International Law, 4th Ed, p. 5C.

115. Abrupt development of customary law is not unusual. In the field of international human rights law,convention and custom have sometimes sprung up almost instantaneously, leading to almost overlappingdevelopments in conventional and customary law.

116. The distinction between laws of war and customs of war is the thin end of a wedge. A good part ofthe conventional laws of war contain customary law, but not all of customary law is embodied inconventional law. Likewise, a good part of the conventional laws of war is treated as customaryinternational law, but not all. Here, I think, the dichotomy arises. If States are parties to certain

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conventions dealing with laws of war, they are bound both favourably and unfavourably to the same, andshould they be in armed conflict, it should matter little whether the conventions have reached thecustomary threshold, for they are bound by the conventions and, having knowledge of them, the rule ofnullum crimen sine lege should not prevail. Thus, since both laws of war and customs of war are covered,not jointly but severally, the question that the laws of war must be reinforced by custom, or that customsof war must be embodied in conventions, does not arise. Both, however, must cover violations ofinternational humanitarian law, that being the grund norm under Article 1 of the Statute.

117. Article 3 of the Statute lists five offences under paras. (a) to (e), with the condition that "suchviolations shall include, but not be limited to" the same. The list is therefore illustrative and not limited tothe five offences stated. It is clear, therefore, that the 1907 Hague Regulations, the 1949 GenevaConventions with Additional Protocols I and II, the 1945 Charter of the International Military Tribunal1945, apart from other conventions, constitute laws of war and that war crimes embodied therein, if theyconstitute serious violations of international humanitarian law, become offences liable to punishmentunder Article 3 of the Statute. Likewise, the 1907 Hague Regulations, the 1949 Geneva Conventions withAdditional Protocols I and II and the instances given in the decision of the Nürnberg Tribunal, on theauthoritative pronouncement of the Secretary-General as contained in para. 44 of his report, constitute,apart from others, the customs of war. There is an overlapping between Articles 2 and 3 of the Statute quathe "grave breaches." Since Article 2 of the Statute specifically deals with the "grave breaches", Article 3thereof must be taken to cover all other serious violations of the 1949 Geneva Conventions and theAdditional Protocols apart from the "grave breaches." Thus, Article 3 of the Statute covers inter alia warcrimes embodied in the 1949 Geneva Conventions and the two Protocols, excluding the "grave breaches"but including all others, such as Common Article 3 thereof, if they constitute serious violations ofinternational humanitarian law. Article 3 would, therefore, cover both international and internal armedconflicts.

118. To test the above appraisal, I would now examine what happened in the Security Council. The reportof the Secretary-General stated that the 1907 Hague Conventions (IV) Respecting the Laws and Customsof War on Land and the Regulations annexed thereto comprised a second important area of conventionalhumanitarian international law which had become part of the body of international customary law. Hementioned that the Nürnberg Tribunal recognised that many of the provisions contained in the HagueRegulations, although innovative at the time of their adoption were, by 1939, recognised by all civilisednations and were regarded as being declaratory of the laws and customs of war. The Nürnberg Tribunalalso recognised that war crimes defined in Article 6 (b) of the Nürnberg Charter were also recognised aswar crimes under international law, and covered in the Hague Regulations, for which guilty individualswere punishable. The Secretary-General stated that the Hague Regulations covered aspects ofinternational humanitarian law which were also covered by the 1949 Geneva Conventions, that the HagueRegulations also recognised that the rights of belligerents to conduct warfare were not unlimited and thatresort to certain methods of waging war were prohibited under the rules of land warfare. In paragraph 44of the report, the Secretary-General concluded that the rules of customary law contained in the HagueRegulations, as interpreted and applied by the Nürnberg Tribunal, provided the basis for Article 3 of theStatute, that he had proposed in the draft. However, when one examines Article 3 of the draft Statute, onefinds that it reads "The International Tribunal shall have the power to prosecute persons violating the lawsor customs of war. Such violations shall include, but not be limited to:" after which paras. (a) to (e)follow, listing certain offences which are contained in the Hague Regulations. The wording of Article 3 ofthe Statute clearly shows that the article is illustrative but not limited to the five offences listed thereunderand that it is vaster in range than the basis laid down in paragraph 44 of the report. Earlier, the Secretary-General had referred to the fact that the Hague Regulations covered aspects of international humanitarianlaw which were also covered by the 1949 Geneva Conventions, which had become the core of thecustomary law applicable in international armed conflicts. The final representation in para. 44 of thereport that the Hague Regulations, constituting rules of customary law, as interpreted and applied by the

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Nürnberg Tribunal, would provide the basis for Article 3 of the Statute of the International Tribunal, wastherefore confusing. In the present case, some of the constitutive States of the former Socialist FederalRepublic of Yugoslavia had amongst themselves or with secessionist groups entered into agreementsagreeing to abide by certain provisions of the Geneva Conventions. These agreements could be used bothin favour or against the contracting parties. Such of the Geneva Conventions which the parties agreed toabide by, were thus binding on them, custom notwithstanding. In view of this position, in the debate onthe said draft, the member of the Security Council representing France drew the attention of the Councilto the fact that "the expression laws or customs of war used in Article 3 of the Statute cover(ed)specifically .................................. all the obligations that flow(ed) from the humanitarian law agreementsin force on the territory of the former Yugoslavia at the time when the offences were committed." Themember representing the United States Government also stated that she thought that it was "understoodthat the laws or customs of war referred to in Article 3 includ(ed) all obligations under humanitarian lawagreements in force in the territory of the former Yugoslavia at the time the acts were committed,including common Article 3 of the 1949 Geneva Conventions and the 1977 Additional Protocols to theseConventions" and that this interpretative statement expressing a clarification was shared by othermembers of the Council. The member representing the United Kingdom, also whilst referring to Articles2 to 5 of the Statute, drew attention to the fact that the reference to the laws or customs of war in Article 3"was broad enough to include applicable international conventions and that Article 5 of the Statutecovered acts committed in time of armed conflict." In these circumstances, in view of interpretativestatements of three of the permanent members of the Security Council and absence of protest from theothers, the adoption of the Statute must be deemed as taking into consideration the views of all themembers, namely, that Article 3 of the Statute had an expanded meaning to also include all humanitarianlaw agreements in force in the territory of the former Yugoslavia and all applicable internationalconventions. It may be stated at this stage that the Socialist Federal Republic of Yugoslavia had in 1950ratified the 1949 Geneva Conventions and in 1979 the two Protocols and had amended its Code ofCriminal Procedure to incorporate all the serious offences mentioned in these treaties and after it becamethe Federal Republic of Yugoslavia had retained the said Code. Likewise, the State of Bosnia-Herzegovina in December 1992 had also declared it had acceded to the Geneva Conventions and the twoAdditional Protocols and adopted, with certain changes, the Criminal Code of the Federal Republic ofYugoslavia. It is therefore clear that when the members of the Security Council approved Article 3 of theStatute, the basis therefore was not only the Hague Regulations, as interpreted and applied by theNürnberg Tribunal, but also all international conventions that were then applicable as laws of war andbinding the belligerents or insurgents engaged in the conflict in the former Yugoslavia. In thesecircumstances, the violations of international humanitarian law arising out of humanitarian lawagreements that fell in the category of laws of war and were binding on the parties, such as the GenevaConventions of 1949 and its two Protocols, including common Article 3 thereof, and those under theHague Regulations, including the five listed under Article 3 of the Statute, all become applicable.Considering that the "grave breaches" are specially covered by Article 2 of the Tribunal’s Statute, theremaining breaches in the Geneva Conventions of 1949 and its two Additional Protocols would becovered by Article 3. Article 3 of the Statute in the said light now becomes clear and free from theambiguity in which it would have been in if only the view of the Secretary-General had been allowed toprevail.

ARTICLE 5 OF THE STATUTE

119. This does not require any discussion as crimes against humanity can be the subject of aninternational or internal armed conflict.

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SUMMATION

120. I disagree with the Trial Chamber’s conclusion that Article 2 of the Tribunal’s Statute, whichprovides for the punishment of grave breaches of the Geneva Conventions, applies regardless of thenature of the conflict at issue. For the reasons explained above, I am of the view that Article 2 appliesonly with respect to offences committed during the course of an international armed conflict. I believe thatArticle 3 of the Tribunal’s Statute, which provides that the Tribunal may try persons for violations of thelaws or customs of war and provides a non-exclusive list of such laws and customs, encompasses all theapplicable laws of war and customs of war that apply in both internal and international armed conflicts.Finally, I agree with the Trial Chamber’s decision that Article 5 of the Tribunal’s Statute gives theTribunal jurisdiction over crimes against humanity committed in internal or international armed conflicts.

THE TRIBUNAL’S PRACTICE AND PROCEDURE

121. A matter on which I would like to comment is the method adopted by the Trial Chamber whendealing with the preliminary motion. On 22nd June, 1995, the preliminary motion was filed by theappellant. It was accompanied by no documents. On 7th July, 1995, the Prosecutor filed his reply thereto,with supporting documents on the 7th and 10th July, 1995. On 25th July, 1995, the preliminary motionwas taken up by the Trial Chamber. At that stage, the accused’s counsel had conceded in his brief that thearmed conflict in the former Yugoslavia was an internal armed conflict and not an international armedconflict and that as all the offences for which the accused had been indicted were required to becommitted in an international armed conflict, the charges against him should be dropped. The TrialChamber than asked counsel for the accused how it should deal with questions of fact i.e., how it shouldtake judicial notice of dates, facts, the withdrawal of the Yugoslav Army and its non withdrawal, or factsthat may make all the difference between a clearly international conflict and one that was internal, orshould they defer this whole issue until there was evidence (if there was going to be evidence) before theChamber concerning those facts. The learned counsel for the accused replied by stating that he agreed thatit was hard to understand how the Chamber could act without establishing facts, but he said he wouldexplain this later why some dates were of vital importance. He then stated he was relying on facts whichwere public and which could be culled from known public documents, which were not disputed. Pointingto the Prosecutor’s intent to prove a report of Mr. Gow, the counsel for the accused stated that he coulddiscuss with the Prosecutor that if he produced that report, he could also produce one on the facts too. Thecounsel reiterated that he was not ready then to say he was going to do that, but this option he wouldconsider. On behalf of the prosecution it was asserted that they had sufficient documentary material toprove their case and much of the documentary material was such from which valid presumptions could bedrawn as regards the facts which were required to be proved by them. This was countered for the accusedthat they had a whole lot of material - particularly opinions - published all over the world which werepublic knowledge, which they did not have to produce. In sporadic discussions on this point, nothingmaterial developed. The Trial Chamber, in its judgement, referred to the great volume of material filedbefore it, but found that little of that material was such that judicial notice could be taken of it in the formof evidence, nor had it been tendered as evidence and, therefore, it desisted from giving a findingregulating the nature of the armed conflict in question. The first thing that the Trial Chamber should havedone was to formally enquire from the accused whether he would be leading any evidence, oral ordocumentary. Had the appellant said "yes", the Trial Chamber should have enquired whether he would beleading oral evidence in particular. If the answer was still in the affirmative, the Trial Chamber shouldhave considered whether it was appropriate for the motion to proceed, considering that the matter was amixed question of law and fact, which could be dealt with along with the main case. Had he replied in thenegative, the Trial Chamber should have called upon both the contesting parties to submit a statement offacts, with particulars as to how and by which documents they stood proved, and to admit or deny such

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facts and documents and to get such documents exhibited on which there was no dispute. At this stage itwould have become known, after objections were recorded by either side, which facts were admitted andwhich documents could have been exhibited as proved or retained for presumptive proof and which had tobe rejected. A mass of documents lodged by either side do not by themselves prove relevant factsinvolved in a case. Some may be proof only as regards their existence; some may be proof of theircontents; some may have some presumptions attaching to them and support certain assumptions; andsome may have no value. All these questions and answers should have been taken on the record formally.Only then the motion should have been allowed to proceed. It was not proper for the Trial Chamber tohave proceeded with the motion before these preliminaries had been attended to. The Trial Chamber erredin not adopting this minimal procedure which it should have adopted for an orderly and legal disposal ofthe case. To record that no documents were tendered by the parties in the judgement is not sufficient, tillall this was formerly put on the record in the form of questions and answers.

122. I now revert to what transpired before the Appeals Chamber. Before this Chamber, the appellant tookup the position that no armed conflict, whether international or internal, took place at the places or in thevillage where the offences were alleged to have taken place. I enquired from the learned counsel for theappellant how he could raise such an issue before us in arguments alone, when the objection was a mixedone of law and facts, on which evidence would have to be led by him. I enquired whether he would notlike to elect whether to drop the motion, subject to his being given the right to raise the matter before theTrial Chamber, after leading evidence there. At this stage, in the confusion of discussion, the learnedcounsel did not agree to exercise such an option, but proceeded on the ground that what was required tobe dealt with by us were facts relative to whether an armed conflict had occurred, as this related tojurisdiction, and if the same were proved then he could later prove before the Trial Chamber whether theoffence in fact had occurred in the village where the appellant was alleged to have committed theoffences. At this stage, the Appeals Chamber permitted the counsel for the appellant to proceed and togive it the sources of his information so that it could compare those sources and decide whether or not itcould take judicial notice of those facts or it could look into them itself. Here I must confess I made amistake and did not get my dissent recorded. The learned counsel for the appellant then gave certain oralfacts, referred to the report of the Commission of Experts (in particular covering the area of Opstina inPrijedor) and urged that no "armed conflict" as such i.e. committed in execution of or in connection withviolations of the laws of armed conflict or genocide, had occurred. The Appeals Chamber then drew theattention of the learned counsel for the appellant to certain references in the report of the Commission ofEnquiry to armed conflict in the town of Prijedor on 30th May 1992, and to the broad definition of armedconflict contained in common Article 3 of the Geneva Convention. The Prosecutor drew the attention ofthe Court to the fact that a large array of facts could be proved from documents from which presumptionscould be drawn, to which counsel for the appellant expressed some concern and the matter then got lost inother discussions. Even assuming, for the sake of argument, that unrestricted powers permitted the TrialChamber to be lax on conventional procedures, but some modicum of legal procedure grounded inmethod and logic should have been adopted by it. As they have not done so, I cannot draw the necessaryconclusions of presumptions even from the Prosecutor’s documents, leave aside from the appellant’s, whohas lodged none. I am therefore inclined to remand the case to the Trial Chamber for adopting theprocedure as stated in para 121 above, or some other modicum of fair procedure, and then deciding thispreliminary matter. Since the appellant has presented a volte face here by retracting from his earlieradmission that the armed conflict was internal, the Trial Chamber shall also decide whether the accusedcan in law retract from such an admission. In short, by dealing with the appeal without ensuring thatproper safeguards are adopted by the Trial Chamber before it draws its conclusions, whatever they maybe, I would be validating confusion and encouraging procedural disarray. In such a situation, I would notlike to hazard an opinion on a mixed question of law and fact, which legally is otherwise not permitted.On the Trial Chamber’s own showing, no facts were proved nor documents tendered in evidence. Whatconclusions can I draw? Should I turn to the Prosecutor’s documents alone to draw conclusions? Should Ipre-empt the duty of the Trial Chamber and dislodge the appellant of first getting his matter attended

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there? The preliminary motion qua lack of jurisdiction requires to be remanded to the Trial Chamber forproper disposal and I hold accordingly. I would also hold that any observations made by me as to whetherthe armed conflict was international or internal, should, out of respect for the appellant’s objection, betreated as not binding the Trial Chamber, so that the appellant can get a fair hearing. The Trial Chambershould decide the motion within a month.

123. The power of remand is an integral part of the appellate system, just as is the power to affirm, reverseor revise a decision of a lower court. Remand is usually resorted to to compel lower courts to enforce thelaw or some of its essential requirements, so very neccessary for the establishment and compliance of thelaw and for a fair and proper legal disposal of the case. It compels the lower court to attend to an essentialmatter which it has overlooked and enables the accused to raise his objections again before the lowercourt, and to have the matter attended to by the appellate court also, if its scope is still open. The power ofremand is contained in Rule 117(c) of the Tribunal’s Rules of Procedure; which permits the AppealsChamber to order a retrial. If a case can be remanded for a whole retrial, it can be remanded for a part. Inmany cases, implied powers have been assumed by international organisations, where it is neccessary oressential for the fufilment of its task or the performance of its functions. The basis for such assumptionhas already been given by me in para. 71 above. This Appeals Chamber, therefore, can also treat thepower of remand as implied within its jurisdiction; the same being necessary and essential for thefulfilment of its task and the performance of its functions.

CONCLUSIONS

124. For the foregoing reasons, I am of the opinion:-

1. That the International Tribunal cannot review the action of the Security Council inestablishing the Tribunal. To this extent, the decision of the Trial Chamber is affirmed. But Ialso hold that the International Tribunal can collaterally examine the legality of its ownestablishment in order to see whether it is not invalidly constituted as to render the exercise ofits powers without jurisdiction. To this extent, the views of the Trial Chamber may be treatedas revised.

2. The International Tribunal was established in conformity with the United Nations Charterand its establishment is in conformity with its purposes and principles. To this extent theviews and the decision of the Trial Chamber are affirmed.

3. That the Security Council had the power to grant primacy to the International Tribunalover national courts. To this extent the views and the decision of the Trial Chamber areaffirmed.

and

4. That Article 2 of the Tribunal’s Statute relates to offences which are identified as "gravebreaches" of the 1949 Geneva Conventions and that these offences are those that arecommitted in an international armed conflict; that Article 3 of the Tribunals Statute coversboth conventional laws of war (including the 1949 Geneva Conventions and its AdditionalProtocols I and II, including Common Article 3 thereof, and the Hague Regulations) andcustoms of war; that Article 5 thereof covers crimes against humanity committed ininternational and internal armed conflicts; that the views of the Trial Chamber in respect ofthe scope of the offences referred to in Articles 2 and 3 may be treated as revised; that the

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decision of the Trial Chamber on Articles 2, 3 and 5 is set aside; and that the appellant’spreliminary motion qua lack of subject matter jurisdiction, subject to the above observationsas regards the scope of Articles 2, 3 and 5 of the Statute, be and is hereby remanded to theTrial Chamber for proper disposal. The Trial Chamber should adopt and record the procedurestated in para. 121 above, or some modicum of fair procedure. I would also direct the TrialChamber to decide whether the appellant can be bound to his earlier admission that the armedconflict was internal, or whether he can retract it. I would also hold that any observationsmade by me as to whether the armed conflict in the former Yugoslavia was international orinternal, should, out of respect for the appellant’s motion, be treated as not binding the TrialChamber, so that the appellant can get a fair hearing thereon.

125. The appeal attacking the lawful establishment of this Tribunal and the grant to it of primacy standdismissed. The appeal qua lack of subject matter jurisdiction is remanded to the Trial Chamber, as statedabove.

___________________________

Signed: Judge Rustam S. Sidhwa

2nd October 1995

Date

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IN THE APPEALS CHAMBER

Before:Judge Cassese, PresidingJudge LiJudge DeschênesJudge Abi-SaabJudge Sidhwa

Registrar:Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:2 October 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_____________________________________

SEPARATE OPINION OF JUDGE ABI-SAAB ON THE DEFENCE MOTION FORINTERLOCUTORY APPEAL ON JURISDICTION

_____________________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant NiemannMs. Brenda HollisMr. Alan TiegerMr. William FenrickMr. Michael Keegan

Counsel for the Accused:

Mr. Michail WladimiroffMr. Milan VujinMr. Alphons OrieMr. Krstan Simic

I totally share and approve the analysis of the Decision on the first ground of the jurisdictional plea of theAppellant. I also accept its position on the second ground. But I have some difficulty in endorsing all thereasoning of the Decision concerning the third ground and more particularly its interpretation of the scopeof Article 2 of the Statute of the Tribunal on "grave breaches." I realise, however, that these divergenciesconcern the process of legal reasoning by which the result is reached more than the result itself, which Iaccept; whence the "separate" character of this Opinion.

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I.

On the Origins of the Crimes Proscribed under the Statute of the Tribunal.

The crimes constituting the serious violations of international humanitarian law for the prosecution ofwhich, according to Article 1 of the Statute, the Tribunal was established, and which are detailed inArticles 2 to 5 ("grave breaches" of the Geneva Conventions, violations of the laws or customs of war,genocide and crimes against humanity) are all of relatively recent origin going back to the immediateaftermath of the Second World War. They were part of the cathartic reaction of the internationalcommunity to the traumas of the untold horrors committed during that war.

They were articulated in a highly emotional atmosphere in the various fora where such reverberations ofrevulsion could find a way to legal expression, by reaching for the proscribed acts and practices from allpossible angles and by all conceivable legal ways and means. This led to relatively loose normativeformulation and a large degree of overlap between these crimes.

In spite of the large debates they initially gave rise to, and the recent resurgence of these debates as thesame patterns of shocking behaviour started to reappear, these crimes hardly received any application inactual practice (with the notable exception of the Nuremberg and Tokyo trials, which in fact belong to thestage of creation), allowing them, through the process of legal concretisation, to fall into place in relationto each other and within the normative tapistry of the international legal system. The principle of"normative economy" or "économie des notions" being a categorical logical imperative for any legalsystem, a legal system cannot withstand the existence within its confines of two concepts or rules thatfulfil essentially the same function or bear divergently on any one situation, however slight the divergencemay be.

The International Criminal Tribunal for the former Yugoslavia, together with the International Tribunalfor Rwanda, are thus afforded a unique opportunity to assume the responsibility for the furtherrationalisation of these categories at some distance from the historical and psychological conditions fromwhich they emerged and from the perspective of the evolving international legal order.

II.

The "Law of the Hague" and the "Law of Geneva"

Articles 2 and 3 of the Statute of the Tribunal address violations of what is respectively known intraditional literature as the "Law of the Hague" and the "Law of Geneva."

As these denominations indicate, the reference originally was to the place in which the differentinstruments codifying and developing these two strands of the jus in bello were concluded. At the turn ofthe century the Hague Regulations dealt with the bulk of the jus in bello, with the notable exception of the"amelioration of the conditions of the wounded and sick", i.e. the then only Geneva Convention inexistence. Even the extension of this latter Convention to war at sea was done by a Convention adopted atThe Hague in 1907. But progressively, parts of the Hague Regulations were developed into new GenevaConventions : in 1929 the "Prisoners of War" Code and in 1949 the new "Civilians" Convention, inaddition to the updating of the other three.

Only then did a rationale for this distinction on the basis of the subject-matter emerge, i.e. that the Law ofGeneva dealt with the protection of potential victims, while the Law of The Hague dealt with the conductof hostilities.

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Yet again in 1977, the bulk of the remaining law of The Hague was received and developed in the twoProtocols additional to the 1949 Geneva Conventions. This tendency towards the fusion of the two strandsof the jus in bello is also noticeable in the approach to crimes arising from their violation.

III.

Criminal Personal Responsibility for Violations of the Jus in Bello

Neither the Hague Regulations of 1899 nor those of 1907 had any provision concerning theirimplementation or the consequences of their violation. Nevertheless, after the First World War the Treatyof Versailles provided (in Articles 227-230) for the prosecution of war crimes on the basis of the violationof these Regulations (as well as for waging the war). But this proved to be "Much Ado about Nothing."

After the Second World War, the Nuremberg and Tokyo Trials prosecuted "war criminals" inter alia onthe basis of the violations of the Hague Regulations as well as the Geneva Conventions where applicable,in spite of the absence in these instruments of specific provisions to that effect.

The 1949 Geneva Conventions were prepared in the wake of the Nuremberg trials and were highlyinfluenced by them. The purpose of their introduction of the new regime of "grave breaches" was two-fold. First, while imposing on States parties the obligation to suppress all the violations of theConventions by measures of their choice (penal, administrative, disciplinary, etc.), it purported to singleout certain acts or omissions as particularly serious violations of the Conventions, and thus introduce acertain uniformity among States parties in dealing with them both internationally and within their penalsystems as a special category of serious crimes. The second purpose was to introduce proceduralobligations as to the prosecution of these crimes by establishing universal jurisdiction over them and theobligation on States parties to prosecute or extradite alleged perpetrators within their jurisdiction.Although, on the face of it, the first purpose does not figure as prominently as the second (because of theawareness - and weariness - of the drafters of the Conventions that they were "not drafting a penal code",whence also the absence of penalties and the avoidance of the term "war crimes"), it is no less importantor relevant.

Significantly, however, one of the outcomes of the following round of codification in 1974-1977, is theclassification in Article 85/5 of Protocol I of the "grave breaches" of the Conventions and the Protocols as"war crimes", a term of art traditionally reserved to the violations of the law of The Hague.

This tendency towards the unification of the two concepts is also visible in the work in progress of theILC on the "Draft Code of Crimes Against the Peace and Security of Mankind", which cites in its draftArticle 22, "grave breaches" as the first category of "war crimes" (ILC, Report to the 50th GeneralAssembly (A/50/10) pp. 51-53).

The drafters of the Statute of the Tribunal chose, however, to ignore this convergence and to treat the twocategories separately. This is consonent with their conservative attitude to a fault, going as far asexcluding from Article 2 "grave breaches" of Protocol I, on the argument that the Protocol does not reflectgeneral international law. But the great majority of the provisions of the two Protocols are uncontestablypart of general international law, while the status of only a few provisions is still subject to controversy.The baby thus went with the bath water.

IV.

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Grave Breaches in Internal Armed Conflicts

One of the merits of the Decision is that by its finding that "grave breaches" are subsumed in the "seriousviolations of the laws or customs of war" it resituated the Statute firmly within the modern trendrecognizing the essential identity of the legal regime of violations of the two strands of the jus in bello.But the Decision had to qualify this finding in a manner that would still preserve for Article 2 of theStatute an autonomous field of application in relation to Article 3, pursuant to the "effet utile" principle ofinterpretation.

While I agree with the way the Decision portrays the relationship between "grave breaches" and "seriousviolations of the laws or customs of war" as that of species to genus, and I can see some merit in applyingthem separately - "grave breaches" being more concretely formulated by reference to the detailedprovisions of the Geneva Conventions - I find the "division of labour" between the two Articles of theStatute in the Decision rather artificial. Instead of reaching, as the Decision does, for the acts expresslymentioned in Article 2 via Article 3 when they are committed in the course of an internal armed conflict, Iconsider, on the basis of the material presented in the Decision itself, that a strong case can be made forthe application of Article 2, even when the incriminated act takes place in an internal conflict.

Admittedly the traditional view, as far as the interpretation of the Geneva Conventions is concerned, hasbeen that the "grave breaches" regime does not apply to internal armed conflicts. But the minority viewthat it does is not devoid of merit if we go by the texts alone and their possible teleological interpretation.

Regardless, however, of the outcome of this initial debate, if we consider the recent developments whichare aptly presented in the Decision, we can draw two conclusions from them. The first is that a growingpractice and opinio juris both of States and international organizations, has established the principle ofpersonal criminal responsibility for the acts figuring in the grave breaches articles as well as for the otherserious violations of the jus in bello, even when they are committed in the course of an internal armedconflict. The second conclusion is that in much of this accumulating practice and opinio juris, the formeracts are expressly designated as "grave breaches" (see Decision para. 83).

This is not a mere question of semantics, but of proper legal classification of this accumulated normativesubstance, with a view to introducing a modicum of order among the categories of crimes falling withinthe substantive jurisdiction of the Tribunal.

The legal significance of this substance can be understood in at least two ways other than the onefollowed by the Decision, in order to bring the acts committed in internal conflicts within the reach of thegrave breaches regime in the Geneva Conventions, and consequently of Article 2 of the Statute.

As a matter of treaty interpretation - and assuming that the traditional reading of "grave breaches" hasbeen correct - it can be said that this new normative substance has led to a new interpretation of theConventions as a result of the "subsequent practice" and opinio juris of the States parties : a teleologicalinterpretation of the Conventions in the light of their object and purpose to the effect of including internalconflicts within the regime of "grave breaches." The other possible rendering of the significance of thenew normative substance is to consider it as establishing a new customary rule ancillary to theConventions, whereby the regime of "grave breaches" is extended to internal conflicts. But the first seemsto me as the better approach. And under either, Article 2 of the Statute applies - the same as Articles 3, 4and 5 - in both international and internal conflicts.

This construction of Article 2 is supported by the fact that it coincides with the understanding of theparties to the conflict themselves of the legal situation. Thus in their Agreement of 1 October 1992 -concerning the implementation of their earlier Agreement of 22 May 1992 which they specifically

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concluded within the framework of common Article 3 of the Geneva Conventions - they excluded fromthe obligation to release prisoners those "accused of or sentenced for, grave breaches ..." (Article 3). Theythus recognised the applicability of the regime of grave breaches in their on-going conflict, which theyhad already classified as internal.

As I mentioned earlier, the outcome does not differ much from that of the Decision. But greater legalcoherence is always a worthwhile judicial pursuit.

Georges Abi-Saab

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IN THE APPEALS CHAMBER

Before:Judge Cassese, PresidingJudge LiJudge DeschênesJudge Abi-SaabJudge Sidhwa

Registrar:Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:2 October 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_____________________________________

SEPARATE OPINION OF JUDGE LI ON THE DEFENCE MOTION FOR INTERLOCUTORY APPEAL ON JURISDICTION

_____________________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant NiemannMs. Brenda HollisMr. Alan TiegerMr. William FenrickMr. Michael Keegan

Counsel for the Accused:

Mr. Michail WladimiroffMr. Milan VujinMr. Alphons OrieMr. Krstan Simic

INTRODUCTION

1. Although I concur in the Decision of the Appeals Chamber that the Appellant’s appeal is dismissed, Iam not in agreement with the Decision on three legal questions:

1. examination of the legality of the establishment of this Tribunal;

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2. subject-matter jurisdiction of this Tribunal under Article 3 of its Statute; and,

3. characterization of the conflict in the former Yugoslavia.

Hence this Opinion, with due respect for the authority of my colleagues.

A. Examination of the Legality of the Establishment of this Tribunal

2. The Decision, relying on the doctrine of competence-competence, reviews the legality of the resolutionof the Security Council on the establishment of this Tribunal. However, the said doctrine, properlyunderstood, only allows the Tribunal to examine and determine its own jurisdiction, while here it has beenimproperly extended to the examination of the competence and appropriateness of the resolution of theSecurity Council on the establishment of this Tribunal. As Article 1 of the Statute of this Tribunal onlygrants this Tribunal "the power to prosecute persons responsible for serious violations of internationalhumanitarian law committed in the territory of the former Yugoslavia since 1991 in accordance with theprovisions of the present Statute", and as the Charter of the United Nations also has never given thisTribunal the power of reviewing the legality of the resolutions of the Security Council, it is crystal clearthat this Tribunal has no such power. So this review is ultra vires and unlawful.

3. Furthermore, the decision on the establishment of this Tribunal by resolution 808 (1993) of the SecurityCouncil pursuant to Article 39 of the Charter of the United Nations was grounded on its determinationthat the situation then existing in the former Yugoslavia constituted a threat to international peace andsecurity. Whether the said situation did constitute a threat to international peace and security and whatmeasures should be taken are political questions which the Security Council as a political organ of theUnited Nations is well qualified to determine and of which the Judges of this Tribunal, trained only in lawand having little or no experience in international political affairs, are really ignorant. Consequently, thereview of the said resolution seems to be imprudent and worthless both in fact and in law.

4. In conclusion, the Decision should have dismissed the appeal on this question without examining thelegality of the establishment of this Tribunal.

B. Subject-matter Jurisdiction under Article 3 of the Statute

5. Article 3 of the Statute of this Tribunal provides for the subject-matter jurisdiction of this Tribunal overwar crimes. However, as the subject-matter jurisdiction over war crimes is also dealt with in Article 2 ofthis Statute with respect to grave breaches of the Geneva Conventions of 1949, so for a general overviewof the question, it is proposed initially to discuss them together.

6. Customary international law treats both the subject-matter jurisdiction and applicable law relating towar crimes differently, according to whether the armed conflict in which the said crimes are committed isinternational or internal. So, for solving these problems, the crucial question is to determine the characterof the armed conflict.

7. Professor Meron states the customary international law of war crimes very correctly and clearly in thefollowing terms:

"Whether the conflicts in Yugoslavia are characterized as internal or international is criticallyimportant. The fourth Hague Convention of 1907, which codified the principal laws of war and

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served as the normative core for the post-World War II war crimes prosecutions, applies tointernational wars only. The other principal prong of the penal laws of war, the grave breachesprovisions of the Geneva Conventions and Protocol I, is also directed to international wars.Violations of common Article 3 of the Geneva Conventions, which concerns internal wars, do notconstitute grave breaches giving rise to universal criminal jurisdiction. Were any part of the conflictdeemed internal rather than international, the perpetrators of even the worst atrocities might try tochallenge prosecutions for war crimes or grave breaches, but not for genocide or crimes againsthumanity." (Meron, War Crimes in Yugoslavia and the Development of International Law, 88 AJIL78, 80 (1994).)

8. The Final Report of 27 May 1994 of the Commission of Experts established pursuant to SecurityCouncil resolution 780 (1992) takes the same view as Professor Meron:

"If a conflict is classified as international, then the grave breaches of the Geneva Conventions,including Additional Protocol I, apply as well as violations of the laws and customs of war. Thetreaty and customary law applicable to international armed conflict is well-established. The treatylaw designed for internal armed conflict is in common [A]rticle 3 of the Geneva Conventions,Additional Protocol II of 1977, and SACrticle 19 of the 1954 Hague Convention for the Protectionof Cultural Property in the Event of Armed Conflict. These legal sources do not use the terms‘grave breaches’ or ‘war crimes’. Further, the content of customary law applicable to internal armedconflict is debatable. As a result, in general, unless the parties to an internal armed conflict agreeotherwise, the only offences committed in internal armed conflict for which universal jurisdictionexists are ‘crimes against humanity’ and genocide, which apply irrespective of the conflicts’classification." (S/1994/674, p. 13, para. 42.)

9. And the ICRC, an authority on international humanitarian law, in the Preliminary Remarks on theSetting-up of an International Tribunal for the Prosecution of Persons Responsible for Serious Violationsof International Humanitarian Law Committed in the Territory of the Former Yugoslavia, "underline[s]the fact that, according to humanitarian law as it stands today, the notion of war crimes is limited tosituations of international armed conflict." (DDM/JUR/442 b, 25 March 1993, para. 4.)

10. Now, I may turn to the difference of my opinion from that of the Decision. The Decision asserts thatthere has been development of customary international law to such an extent that all the various violationsof the laws or customs of war as enumerated in lit. (a)-(e) of Article 3 of the Statute of this Tribunal areliable to be prosecuted and punished even if they are committed in internal armed conflict. I cannot agreewith this assertion.

11. According to Article 38 I(b) of the Statute of the International Court of Justice, for the establishmentof a customary rule of international law, two requirements must be met:

1. the existence of a general practice of States; and

2. the acceptance of the general practice as law by States.

There is no proof of the fulfilment of these two requirements. On the contrary, the Decision itself admitsthat not all, but only "a number of rules and principles governing international armed conflicts havegradually been extended to apply to internal conflicts." (Decision at p. 67, para. 126.) Furthermore, as iswell known, the armed conflict in Rwanda was internal, so the Statute adopted by Security Councilresolution 955 (1994), with regard to the subject-matter jurisdiction of the Tribunal for Rwanda, onlyprovides for jurisdiction over the crimes of genocide in Article 2, jurisdiction over crimes againsthumanity in Article 3, and jurisdiction over violations of Article 3 common to the Geneva Conventions of

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1949 and of Additional Protocol II of 1977, without mentioning the jurisdiction over violations of thelaws or customs of war as provided for in Article 3 of the Statute of this Tribunal. If the jurisdiction oversuch violations provided for in Article 3 of the Statute of this Tribunal as a result of the development ofcustomary international law has been so extended as to cover all such violations irrespective of whetherthey are committed in international or internal armed conflict, why should the Statute for the InternationalTribunal of Rwanda have left out the provision of this jurisdiction?

12. As regards the interpretative statements of the French, U.S. and U.K. delegates on Article 3 of theStatute in the Security Council when voting on the resolution adopting the Statute, I agree. But theseinterpretative statements only give grounds for interpreting Article 3 of the Statute as granting theTribunal the power to prosecute the various violations specified in the two Additional Protocols of 1977and common Article 3 of the Geneva Conventions of 1949, which interpretation I endorse; they, however,do not maintain that the violations of the laws or customs of war which are enumerated in lit. (a)-(e) andcommitted in an internal armed conflict should be prosecuted according to Article 3 of the Statute.

13. And I cannot agree with the Decision that Article 3 "confers on the International Tribunal jurisdictionover any serious offence[s] against international humanitarian law not covered by Article 2, 4 or 5"(Decision at p. 51, para. 91) and that "the conditions to be fulfilled for Article 3 to become applicable"(Decision at p. 52, para. 94) may be laid down by the Decision. The Decision on this question is in fact anunwarranted assumption of legislative power which has never been given to this Tribunal by anyauthority.

C. Characterization of the Conflict in the Former Yugoslavia

14. There are two approaches for characterizing the conflict in the former Yugoslavia. The first approach,which is adopted by the Appellant, is to look at the various conflicts in isolation. Consequently, theAppellant contends that in the relevant time and place, there was not even an armed conflict. The secondapproach, which is adopted by the Prosecution, looks at them in their entirety. So the Prosecutioncontends that at least beginning from 8 October 1991, there has been international armed conflict in theformer Yugoslavia up to the present.

15. The Decision decides that the alleged crimes were committed by the accused in the context of anarmed conflict, but does not determine that the armed conflict in the context of which they werecommitted was international in character.

16. The Prosecutor’s submission relies mainly on the various resolutions of the Security Council,contending that they show that the Security Council consistently viewed the conflict in the formerYugoslavia in its entirety and considered it of international armed character. This contention is rejected bythe Decision, which emphasizes that there have been both international and internal conflicts there atvarious times and places.

17. I am of the opinion that the submission of the Prosecution to view the conflict in the formerYugoslavia in its entirety and to consider it international in character is correct.

The armed conflict in the former Yugoslavia started shortly after the date on which Slovenia and Croatiadeclared their independence on 25 June 1991 between the military forces of the SFRY and Slovenia andCroatia. Such armed conflict should of course be characterized as internal because the declarations ofindependence were suspended in consequence of the proposal of the EC for three months. After theexpiration of the three months’ period, on 7 October 1991, Slovenia proclaimed its independence with

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effect from that date, and Croatia with effect from 8 October 1991. So the armed conflict in the formerYugoslavia should be considered international as from 8 October 1991 because the independence of thesetwo States was definite on that date.

But there were some internal armed conflicts in the whole course of the conflict, for instance, Bosniansagainst Bosnians, and the question is how to treat such internal conflicts. This question is correctlyanswered by O’Brien as follows:

"Most importantly, the conflict is clearly international: three nations have fought, primarily in theterritory of two of them (thus far), with a number of fronts and partisans or proxy groupsparticipating on behalf of each. Once this determination is made, it should not matter that somecombatants are citizens of the same nation-State. It is virtually unthinkable that, for example, aUkrainian fighting for the German Army in World War II would have succeeded in arguing that hisfight was internal (against the Soviet State), regardless of the character of the broader conflict."(O’Brien, The International Tribunal for Violations of International Humanitarian Law in theFormer Yugoslavia, 87 AJIL 639, 647-648 (1993).)

18. Of the three nations mentioned by O’Brien in the passage quoted above, one is surely SFRY,afterwards FRY, and the other two are of course Croatia and Bosnia-Herzegovina. Indeed, there issufficient evidence of probative value for proving that SFRY, afterwards FRY, participated, and FRY isstill participating in the armed conflict against Croatia and Bosnia-Herzegovina. In the following I brieflylist some:

1. The Final Report of the Commission of Experts established pursuant to Security Councilresolution 780 (1992) states that both the "Bosnian Serb Army" operating in Bosnia and the"Krajina Serb Army" operating in Croatia are "armed and supported by the JNA" (Annexes to theFinal Report, UN Doc. S/1994/674, Annex Summaries and Conclusions, para. 29). Furthermore, itsays that the Bosnian Serb Army is carrying out the FRY objective of creating a new YugoslavState from parts of Croatia and Bosnia and Herzegovina, and that the 110,000 troops nominallysubordinated to the "Serbian Republic of Bosnia" and the "Serbian Republic of Croatia" receiveinstructions, arms and ammunition and other support from the JNA and the FRY (Annex III to theFinal Report, paras. 17 and 124).

2. The Reports of Mr Mazowiecki give a clear account of the policy of the so-called "ethniccleansing" consistently employed by the FRY for the purpose of creating a Greater Serbia by theforceful incorporation of the parts of territory of Croatia and Bosnia-Herzegovina into a GreaterSerbia. For instance, his third Report of November 1992 further describes the methods used for"ethnic cleansing" and states: "This lends credence to the fear that the ultimate goal may be toincorporate Serbian-occupied areas of Croatia and Bosnia and Herzegovina into a ‘Greater Serbia’."(UN Doc. A/47/666, para. 13.)

3. The statement submitted by Mr Andrew J.W. Gow, dated 30 January 1995, corroborates in detailthe above-mentioned statements of the Reports of the United Nations Commission of Experts andMr Mazowiecki. (Documents presented to the Trial Chamber by the Prosecution, Vol. III,Document 101.)

4. Many resolutions of the Security Council reflect that there was a continuing international armedconflict in the former Yugoslavia. For instance, resolution 757 of 30 May 1992 imposed a series ofeconomic sanctions against the FRY, which were to apply until the Security Council decided thatthe authorities of the FRY, including the JNA, had taken effective measures to fulfil therequirement of resolution 752 for the withdrawal of their forces from Bosnia and the cessation of

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their interference in Bosnia. The Council has never found that these requirements have been metand has not lifted all sanctions imposed. In effect, the Council’s actions amount to a recognition ofthe continuing international character of the conflict. (The Amicus Curiae Brief of the U.S., 25 July1995, p. 32.)

5. The Bosnia-Herzegovina Government declared formally on 20 June 1992 the state of war in thecountry. It announced that Bosnia-Herzegovina was "the victim of aggression carried out by theRepublic of Serbia, the Republic of Montenegro, the Yugoslav Army and terrorists of the SerbianDemocratic Party ...." (UN Doc. S/24214, Annex.) According to common Article 2(1) of theGeneva Conventions of 1949, the Conventions shall apply to all cases of declared war. So becauseof the declaration of war by the Government of Bosnia-Herzegovina, the armed conflict in thatcountry must also be considered as international.

19. Moreover, it is to be noted that the Commission of Experts mentioned in paragraph 8 has consistentlyheld the view that the conflicts in the former Yugoslavia should be envisaged in their entirety, to whichthe law applicable in international armed conflict should be applied. In its Final Report, the Commissiondeclares its definite position clearly as follows:

"[A]s indicated in paragraph 45 of its first interim report, the Commission is of the opinion that thecharacter and complexity of the armed conflicts concerned, combined with the web of agreementson humanitarian law that the parties have concluded among themselves, justifies the Commission’sapproach in applying the law applicable in international armed conflicts to the entirety of the armedconflicts in the territory of the former Yugoslavia." (S/1994/674, p. 13, para. 44.)

20. Finally, I must point out that, because the Decision has not determined that the armed conflict in thecontext of which the alleged criminal acts were committed was international in character, it has a flaw inthat it has not established an important element of the jurisdiction of this Tribunal under Article 2 overthis case.

(Signed) ...........................................

Haopei Li

(Date) 2 October 1995