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Nuremberg Revisited: The Tadic Case
by Jose E. Alvarez 1
Full text available: PDF format *
`sur une base fragile, on n'édifie rien de solide'
Claude Lombois
The forthcoming trial of Dusko Tadic, the Bosnian Serb charged with violating international humanitarian law, including genocide, grave breaches of the Fourth Geneva Convention, and crimes against humanity, is likely to be foundational, political and epic.2 Like the Nuremberg and Tokyo trials, the trial of the first defendant in the custody of the new ad hoc war crimes tribunal for the former Yugoslavia3 is foundational in that it seeks not only to effect legal justice for Tadic but to reinvigorate the Nuremberg principles, and indirectly, the rule of law. It is political insofar as intended to deter future war crimes, make reconciliation possible in the former Yugoslavia, and help restore peace. It is epic since, beyond Tadic's guilt or innocence, what is at stake is the Security Council's power to direct the first international criminal proceedings since World War II through ad hoc tribunals created by Council fiat.4
Even before the trial of Tadic begins, its likely legacies are emerging, thanks to pre-trial defense motions challenging (1) the legality of the establishment of the Tribunal, (2) its primacy over national courts, and (3) its subject matter jurisdiction. This comment focuses on the trial and appellate chambers' responses to the first two sets of defense arguments.5 In these decisions, issued in August and October 1996 respectively, the Tribunal's judges attempt to justify their Tribunal's existence.6 Although, predictably, both trial and appellate chambers affirm the legality of Tadic's prosecution by the Tribunal, the legal arguments used to reach this result -- compromised from the outset -- are, by themselves, not sufficient to legitimize a Tribunal with such foundational, political and epic goals.
I. A Tribunal Divided: Trial versus Appellate Chambers
The results in the trial and appellate chambers scarcely differ. Both chambers reject the defense argument that the Tribunal is empowered to `judicially review' actions by the Security Council, including its article 39 determination of `threat to the peace,' yet both nonetheless address the substance of the defendant's challenges to the Security Council's establishment of the Tribunal. Thus, both trial and appellate chambers agree that the Council did not act arbitrarily in establishing the Tribunal; both affirm that establishment was an appropriate response, taken under UN Charter article 41, to a justifiably determined `threat to the peace;' and both reject challenges premised on violation of either sovereign or human rights.
Although the two chambers reached similar results, the respective majority opinions, bearing the signatures of Judge McDonald at the trial level and Judge Cassese on appeal, could hardly differ more.7 This is especially true of the respective chambers' views of the Security Council. The trial judges see Chapter VII decisions as simply `not reviewable.'8 For the trial chamber, the International Court of Justice (ICJ) has itself confirmed that the World Court (and by extension, this Tribunal) has no powers of judicial review, especially over the Council.9 That chamber contends that it has no choice but to follow Council dictates, indicating that the Council simply did not `intend' to permit the Tribunal's judges to `question the legality of the law which established it.'10 Although the trial judges go on to address, presumably through non-binding dicta, the merits of some of Tadic's arguments, they repeatedly disclaim any intention of setting out limits for the Council, stating that they cannot `judge the reasonableness of the acts of the Security Council.'11 For that chamber, both the Council's article 39 determination of `threat to the peace' and its choice of means to meet that threat constitute fact-based, non-justiciable policy determinations.12 The trial chamber's opinion even cites the criteria for `political questions' delineated by the U.S. Supreme Court in Baker v. Carr (369 U.S. 186, 217 (1962)) in arguing that it is for the Council alone to decide whether what it does under Chapter VII is lawful.13
Given its views of the primacy of the Council, the trial chamber deals only perfunctorily with Tadic's claims. It sees the principle that tribunals be `established by law' as permitting ad hoc bodies.14 It finds the principle of jus de non evocando inapplicable given UN members' `surrender of sovereignty' to the Council.15 It dismisses for lack of standing and nonreviewability Tadic's claim that national sovereignty is violated by the Tribunal's primacy over national prosecutions.16
The appellate chamber, by contrast, takes an expansive view of its power to determine its own jurisdiction - even at the expense of the Council. The masterful opinion for the majority on appeal finds that `jurisdiction' is not merely a question of determining whether a case is properly within the time and subject matter scope of the Tribunal's statute.17 It argues that international tribunals constitute `self-contained' systems with `inherent' judicial powers over Kompetenz-Kompetenz (or compétence de la compétence) and can respond to a challenge to their lawful constitution, even when this is not expressly indicated in their constitutive instruments.18 To limit the Tribunal's inherent power to determine its jurisdiction to what the Council intends is to suggest that the Tribunal remains `totally in [the Council's] power and at its mercy.'19 Such a limitation, contends the appellate chamber, would undermine the Tribunal's judicial character, cannot be inferred, and would require express derogation from a `well-entrenched principle of general international law.'20 The appellate chamber argues that what the Council intended was, instead, to create an independent subsidiary body, along the lines of the Administrative Tribunal considered in the ICJ's Effect of Awards Case.21 In contrast to the trial chamber, this opinion cites ICJ Advisory Opinions to support the idea that an independent tribunal can review the legality of Council acts if this is `incidental' to the determination of its jurisdiction22 and to reject, as `unfounded in law,' the `political question' doctrine.23
These determinations lead the appellate chamber to a more detailed examination of the merits of Tadic's claims. The results are conclusions as to the scope of the Council's powers (and possible limits thereon) more detailed than any contained in recent ICJ opinions.24 Among other things, the appellate judges conclude that: the Council's powers are wide but limited to `specific' powers short of `absolute fiat;'25 there is a varying political content to possible determinations under article 39 of the Charter and while a finding of a `threat to the peace' is more political than a determination of `aggression,' even the former is constrained by the Purposes and Principles of the Charter;26 `internal armed conflicts' may constitute a `threat to the peace' under settled UN practice;27 article 39 channels and limits the Council's powers to the means provided in articles 41 and 42;28 and establishment of the Tribunal constitutes a `measure not involving the use of force' under article 41,29 does not constitute either an improper delegation nor a usurpation of judicial powers,30 lies within the wide discretion of the Council as to chosen means, and should not be tested by the likelihood of success or failure in achieving the Council's goals.31
The appellate chamber rejects on the merits the defendant's contention that the Tribunal is not `established by law' as provided for in human rights conventions, arguing that whatever this provision means has been fulfilled through the creation of a fair tribunal by a body constitutionally authorized to take binding action.32 The appellate judges disagree with the trial chamber and find that an individual faced with criminal prosecution necessarily has standing to raise a possible issue of violation of state sovereignty. They conclude that Tadic has standing to object to the Tribunal's primacy over national jurisdictions.33 They nonetheless reject that defense on the merits because of the UN Charter article 2(7)'s exception for `enforcement action.'34 Finally, the appellate chamber rejects defendant's plea of jus de non evocando because it finds that this principle only prevents the creation of unfair tribunals.35
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1 Professor of Law, University of Michigan Law School
2 See David Luban, Legal Modernism 335-78
(discussing Nuremberg) and 379-91 (discussing the foundational, political and
epic aspects of particular trials)(1994).
3 Established by Security Council Resolution
827, S/Res/827, May 25, 1993.
4 The Council has also created an
international tribunal for Rwanda. Security Council Resolution 955, S/Res/955,
Nov. 8, 1994.
5 Tadic argued, among other things, that the
Tribunal was illegal because: the UN drafters had not envisaged it, the
Assembly was not involved in its creation, the text of the Charter did not
grant the Council the authority, the Council had not consistently created such
tribunals in other instances, the Council could not act on individuals, there
was no real threat to the peace, the Tribunal would not promote peace, a
political body cannot create a judicial organ, and the Council could not
violate national sovereignty. See, e.g., Dusko Tadic, Case No.
IT-94-I-T, Aug. 10, 1995 (henceforth `Trial Chamber'), para. 2.
6 Trial Chamber, supra note 4;
Dusko Tadic, Case No. IT-94-1-AR72, Oct. 2, 1995 (henceforth `Appellate
Chamber').
7 Except as otherwise indicated, reference
to the decisions by the `trial chamber' or `appellate chamber' refers to these
respective majority opinions. Where reference is made to the opinions of
individual judges, the judge is indicated by name.
9 Trial Chamber, paras. 10-13.
11 Trial Chamber, at para. 16.
12 Trial Chamber, paras. 24 and
28.
13 Trial Chamber, para. 24. Thus, the trial
chamber concludes that the establishment of the Tribunal is `not a justiciable
issue.' Trial Chamber, para. 23.
15 Trial Chamber, para. 37 (noting Charter
article 2(7)'s exception for enforcement actions).
17 Appellate Chamber, para. 10.
18 Appellate Chamber, para. 11-12, 14, and
18.
19 Appellate Chamber, para. 15.
20 Appellate Chamber, para. 19.
21 Appellate Chamber, para. 16, citing
Effect of Awards of Compensation Made by the United Nations Administrative
Tribunal, 1954 I.C.J. Rep. 47 (Advisory Opinion of 13 July).
22 Appellate Chamber, at para. 21 (citing
the ICJ's Namibia and Effect of Awards Advisory Opinions).
23 Appellate Chamber, at para. 24 (citing
the ICJ's Certain Expenses Advisory Opinion).
24 Compare Appellate Chamber, paras. 28-48
with, for example, Questions of Interpretation and Application of the 1971
Montreal Convention arising from the Aerial Incident at Lockerbie (Libya v. UK;
Libya v. U.S.), Provisional Measures, 1992 ICJ Rep. 3, 114
(henceforth Lockerbie).
25 Appellate Chamber, para. 28.
26 Appellate Chamber, para. 29.
27 Appellate Chamber, para. 30.
28 Appellate Chamber, paras.
31-32.
29 Appellate Chamber, paras.
33-36.
30 Appellate Chamber, para. 38.
31 Appellate Chamber, para. 39.
32 Appellate Chamber, paras. 39-45
(discussing, for example, article 14 of the International Covenant on Civil and
Political Rights which, among other things, assures criminal defendants the
right to `a fair and public hearing by a competent, independent and impartial
tribunal established by law').
33 Appellate Chamber, para. 55.
34 Appellate Chamber, para. 56.
35 Appellate Chamber, paras. 61-62.
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