Prosecutor v.

Dusko Tadić (tah-dich)

October 2, 1995 Cassese, J.
TOPIC IN SYLLABUS: Cases on Customary Law
SUMMARY: Tadic was the first first individual to be tried by International Criminal Tribunal for the Former
Yugoslavia (ICTY). He was tried for war crimes and accused of committing atrocities as the Serb-run Omarska
concentration camp in Bosnia-Herzegovina. Tadic challenged the jurisdiction of the Int’l Tribunal because it was
not duly established by law but by a Resolution of the Security Council. The Court held that the Int’l Tribunal has
jurisdiction in accordance with Art 2, which provides that they have the power to prosecute persons committing
grave breaches of the Geneva Conventions. The Geneva Conventions are a part of customary international law,
and their application in the case does not constitute “Nullem Crimen, Nulla poena Sine Lege”1

FACTS:
• Appellant Tadic was tried by 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
(International Tribunal) for alleged war crimes he committed.
• Tribunal was created by resolution of the Security Council.
• Before the Trial Chamber, Tadic interposed a Defence Motion (before actual trial) attacking the following:
a) Illegal foundation of the International Tribunal;
b) Wrongful primacy of the International Tribunal over national courts;
c) Lack of subject matter jurisdiction
• The Trial Chamber declined to rule on (a) citing incompetency to as it challenges the establishment of the
Internation Tribunal. It dismissed the last two grounds (b) and (c)
• Questions posed before the Appeals Chamber:
1) Does the Appeals Chamber have the jurisdiction to hear this appeal? YES
Prosecutor and one amicus curae argues that it cannot.
o The validity of creation of International Tribunal and different from its jurisdiction.
o Only jurisdiction is appealable.
Appeals Chamber says that it can be heard.
o Such a fundamental matter as the jurisdiction of the International Tribunal should not be kept for
decision at the end of a potentially lengthy, emotional and expensive trial.
o What is this, if not in the end a question of jurisdiction? And what body is legally authorized to pass on
that issue, if not the Appeals Chamber of the International Tribunal?

2) Does the International Tribunal have jurisdiction to hear the case on the merits? YES
To assume that the jurisdiction of the International Tribunal is absolutely limited to what the Security Council
"intended" to entrust it with, is to envisage the International Tribunal exclusively as a "subsidiary organ" of the
Security Council.
o But the Security Council not only decided to establish a subsidiary organ it also clearly intended to
establish a special kind of "subsidiary organ": a tribunal.

In treating a similar case in its advisory opinion on the Effect of Awards of the United Nations Administrative
Tribunal, the International Court of Justice derived the judicial nature of the United Nations Administrative
Tribunal (UNAT) from the use of certain terms and language in the Statute and its possession of certain
attributes.
o One of these attributes is that it is empowered “in the event of a dispute as to whether the Tribunal
has competence” to settle such issue by the decision of the Tribunal.
o Principle of “Kompetenz-Kompetenz" in German or "la compétence de la compétence" in French, is a
major part, of the incidental or inherent jurisdiction of any judicial or arbitral tribunal.

                                                                                                               
1
There is no crime when there is no law punishing it
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 In international law, where there is no integrated judicial system and where every judicial or arbitral organ
needs a specific constitutive instrument defining its jurisdiction, "the first obligation of the Court - as of any
other judicial body - is to ascertain its own competence."

ISSUES:
• Was the International Tribunal unlawfully established? NO
• Is the question at issue political and as such, non-justiciable? NO
• Is the primacy of the International Tribunal over competent domestic courts unjustified? NO.

HELD:
A. Meaning of Jurisdiction
One of the justifications of the Trial Chamber in denying the motion was that the issue of the validity of the
creation of the International Tribunal was not a matter of jurisdiction (which are questions of time, place
and nature of the offense charged) but the lawfulness of its creation.

Appeals Chamber says that this is a narrow concept of jurisdiction.

o Jurisdiction is not merely an ambit or sphere (better described in this case as "competence"); it is
basically a legal power, hence necessarily a legitimate power, "to state the law" (dire le droit) within
this ambit, in an authoritative and final manner.

A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not in international law.
o Because it lacks a centralized structure and has no integrated judicial system.
o In international law, every tribunal is a self-contained system (unless otherwise provided)

B. Admissibility of Plea Based on the Invalidity of the Establishment of the International Tribunal
The Trial Chamber, agreeing with the Prosecutor and in declaring the Tadic’s plea inadmissible, says that it (1)
lacks the authority to review its establishment by the Security Council and (2) the subject matter of the plea
raises “political and non-justiciable” questions.

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

• Cannot justify inadmissibility of the plea, as such ground is unfounded in law.
• As long as the case before it or the request for an advisory opinion turns on a legal question capable of a
legal answer, the Court considers that it is duty-bound to take jurisdiction over it, regardless of the political
background or the other political facets of the issue.
o Most interpretations of the Charter of the United Nations will have political significance, great or
small. In the nature of things it could not be otherwise.

C. The Issue of Constitutionality

Appellant contends that to be duly established, the International Tribunal should have been created either by
treaty, the consensual act of nations, or by amendment of the Charter of the United Nations, not by resolution
of the Security Council. The General Assembly was not involved in its creation. It is currently not promoting
international peace. No threat in existence to justify the creation of the tribunal.
• Security Council enjoys a wide margin of discretion in choosing course of action after determination of a
breach of peace.
• Prima facie, the International Tribunal matches perfectly the description in Article 41 of using "measures
not involving the use of force."
o All the article requires is that such measure uses no force and thus establishment of a tribunal
cannot be excluded from such measure.
• Although Security Council is not a judicial body, it doesn’t mean it cannot set one up.
o It merely wanted to establish such an instrument to exercise its own principal function of
maintenance of peace and security. No delegation of powers happened.

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 D. Was The Establishment Of The International Tribunal Contrary To The General Principle Whereby
Courts Must Be "Established By Law?
• Appellant cites Article 14, paragraph 1, of the International Covenant on Civil and Political Rights saying
that “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial
tribunal established by law.”
• First interpretation of “established by law” = Established by legislature
o The constitutional structure of the United Nations does not follow the division of powers often
found in national constitutions.
o UN has no legislature, thus such interpretation cannot be used.
• Second interpretation of “established by law” = establishment of international courts by a body (i.e.
Security Council) which, though not a Parliament, has a limited power to take binding decisions
• Third interpretation of “established by law” = in accordance to the rule of law
o For a tribunal such as this one to be established according to the rule of law, it must be
established in accordance with the proper international standards; it must provide all the
guarantees of fairness, justice and even-handedness, in full conformity with internationally
recognized human rights instruments.
o The important consideration in determining whether a tribunal has been "established by law" is
that it be set up by a competent organ in keeping with the relevant legal procedures, and should
that it observes the requirements of procedural fairness.
o An examination of the Statute of the International Tribunal, and of the Rules of Procedure and
Evidence adopted pursuant to that Statute leads to the conclusion that it has been established in
accordance with the rule of law.
§ The fair trial guarantees in Article 14 of the International Covenant on Civil and Political
Rights have been adopted almost verbatim in Article 21 of the Statute.
§ Other fair trial guarantees appear in the Statute and the Rules of Procedure and Evidence.

Is the primacy of the International Tribunal over competent domestic courts unjustified? NO. Plea dismissed.
• Article 9 of the Statute of the International Tribunal provides that the Tribunal shall have primacy over national
courts. National courts may be requested to defer the to competence of International Tribunal. Appellant
argues that such is an infringement upon the sovereignty of the States affected.
• The crimes which the International Tribunal has been called upon to try are not crimes of a purely domestic
nature. They are really crimes which are universal in nature, well recognised in international law as serious
breaches of international humanitarian law, and transcending the interest of any one State.
• The sovereign rights of States cannot and should not take precedence over the right of the international
community to act appropriately as they affect the whole of mankind and shock the conscience of all nations
of the world
• No rights of the accused are violated when he or she is tried in special courts OTHER than his or her
domestic courts, as long as such tribunals are equally fair. Right of domestic courts to try criminals in their
jurisdiction is NOT exclusive.

Does the International Tribunal lack subject-matter jurisdiction over the crimes alleged? No. Plea dismissed.
• Appellant claims that the subject-matter jurisdiction under Articles 2, 3 and 5 of the Statute of the International
Tribunal is limited to crimes committed in the context of an international armed conflict.
• Appellant says that crimes he allegedly committed were due to an internal armed conflict.
• International humanitarian law governs the conduct of both internal and international armed conflicts.
• An armed conflict exists whenever there is a resort to armed force between States or protracted armed
violence between governmental authorities and organized armed groups or between such groups within a
State.
o International humanitarian law applies from the initiation of such armed conflicts and extends beyond
thecessation of hostilities until a general conclusion of peace is reached; or, in the case of internal
conflicts, a peaceful settlement is achieved.

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• The conflicts in the former Yugoslavia have both internal (Bosnian Government vs Bosnian Serb rebel forces)
and international (involvement of Croatian Army and involvement of Yugoslav National Army in Croatia)
aspects, that the members of the Security Council clearly had both aspects of the conflicts in mind when they
adopted the Statute of the International Tribunal, and that they intended to empower the International Tribunal
to adjudicate violations of humanitarian law that occurred in either context.

a) Art 2: Limited only to International Armed Conflicts

“The International Tribunal shall have the power to prosecute persons committing or ordering to be committed
grave breaches of the Geneva Conventions of 12 August 1949, namely the following acts against persons or
property protected under the provisions of the relevant Geneva Convention: xxx “

Appellant argues that the grave breaches enforcement system only applies to international armed conflicts,
and thus limits Article 2 application to international armed conflicts. Trial Chamber disagreed.
o The international armed conflict requirement of the grave breaches system was a necessary limitation
on the grave breaches system in light of the intrusion on State sovereignty that such mandatory
universal jurisdiction represents.
o Reference to Geneva Conventions clearly intended to indicate that the offences listed under Article 2
can only be prosecuted when perpetrated against persons or property regarded as "protected" by the
Geneva Conventions

b) Art 3: Applicable to Internal Armed Conflicts based on intent of Security Council and customary law
“The International Tribunal shall have the power to prosecute persons violating the laws or customs of war.
Such violations shall include, but not be limited to: xxx”

The expression "violations of the laws or customs of war" is a traditional term of art used in the past, when the
concepts of "war" and "laws of warfare" still prevailed
o The Hague Regulations, in which the laws or customs of war are codified, have a broader scope than
the Geneva Conventions, in that they cover not only the protection of victims of armed violence
(civilians) or of those who no longer take part in hostilities (prisoners of war), the wounded and the
sick) but also the conduct of hostilities.

Article 3 does not confine itself to covering violations of Hague law, but is intended also to refer to all violations
of international humanitarian law flowing from offenses in war. It is catch all provision in terms of jurisdiction of
the International Tribunal.
o Conditions that must be fulfilled for Art. 3 to become applicable:
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 must be met
(see below);
iii) The violation must be "serious", that is to say, it must constitute a breach of a rule protecting important
values, and the breach must involve grave consequences for the victim. Thus, for instance, the fact of a
combatant simply appropriating a loaf of bread in an occupied village would not amount to a "serious
violation of international humanitarian law" although it may be regarded as falling 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 be respected" by any army occupying an enemy
territory;
iv) The violation of the rule must entail, under customary or conventional law, the individual criminal
responsibility of the person breaching the rule.

Customary Rules of International Humanitarian Law Governing Internal Armed Conflicts

• General rules on internal armed conflicts due to increasing need to regulate the increasing number of civil
wars breaking out across the globe.
o Soon States began adopting customary rules of war in internal conflicts are well.
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 o Ex. the General Assembly adopted Resolution 2675 on “Basic principals ofr the protection of civilian
populations in armed conflicts.” § Norway, as co-sponsor of the resolution, said that “the term 'armed
conflicts' was meant to cover armed conflicts of all kinds, an important point, since the provisions of
the Geneva Conventions and the Hague Regulations did not extend to all conflicts.
o Difficult to establish actual troop behavior, so such customary rules are based on official
pronouncements of States, military manuals and judicial decision.
o Examples of principal rules: Rule on protecting civilian population from the hostilities, rule on
protecting those who do not (or no longer) take part in hostilities, etc.

(c) Article 5
“The International Tribunal shall have the power to prosecute persons responsible for the following crimes
when committed in armed conflict, whether international or internal in character, and directed against any
civilian population: xxx [Crimes against Humanity]”

• It is by now a settled rule of customary international law that crimes against humanity do not require a
connection to international armed conflict.
• Indeed, customary international law may not require a connection between crimes against humanity and any
conflict at all.
• Thus, by requiring that crimes against humanity be committed in either internal or international armed conflict,
the Security Council may have defined the crime in Article 5 more narrowly than necessary under customary
international law.

ACCORDINGLY, THE DECISION OF THE TRIAL CHAMBER OF 10 AUGUST 1995 STANDS REVISED, THE
JURISDICTION OF THE INTERNATIONAL TRIBUNAL IS AFFIRMEDAND THE APPEAL IS DISMISSED.

Relevant Part for International Responsibility

Individual Criminal Responsibility In Internal Armed Conflict
• Even if customary international law includes certain basic principles applicable to both internal and international armed
conflicts, Appellant argues that such prohibitions do not entail individual criminal responsibility when breaches are
committed in internal armed conflicts; these provisions cannot, therefore, fall within the scope of the International
Tribunal's jurisdiction.
• Faced with similar claims with respect to the various agreements and conventions that formed the basis of its jurisdiction,
the International Military Tribunal at Nuremberg concluded that a finding of individual criminal responsibility is not barred
by the absence of treaty provisions on punishment of breaches.
• The Nuremberg Tribunal considered a number of factors relevant to its conclusion that the authors of particular
prohibitions incur individual responsibility: (1) the clear and unequivocal recognition of the rules of warfare in international
law and (2) State practice indicating an intention to criminalize the prohibition, including statements by government
officials and international organizations, as well as punishment of violations by national courts and military tribunals.
• 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 by punishing
individuals who commit such crimes can the provisions of international law be enforced.
• Applying the foregoing criteria to the violations at issue here, we have no doubt that they entail individual criminal
responsibility, regardless of whether they are committed in internal or international armed 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 can doubt the gravity of the acts at issue, nor
the interest of the international community in their prohibition.
• Attention should also be drawn to national legislation designed to implement the Geneva Conventions, some of which go
so far as to make it possible for national courts to try persons responsible for violations of rules concerning internal
armed conflicts. (Cites various laws)
• It should be added that, in so far as it applies to offences committed in the former Yugoslavia, the notion that serious
violations of international humanitarian law governing internal armed conflicts entail individual criminal responsibility is also
fully warranted from the point of view of substantive justice and equity.

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