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Jurisdiction of the International Criminal Tribunal for the Former Yugoslavia

Published online by Cambridge University Press:  27 February 2017

George H. Aldrich
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Type
Editorial Comments
Information
American Journal of International Law , Volume 90 , Issue 1 , January 1996 , pp. 64 - 69
Copyright
Copyright © American Society of International Law 1996 

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References

1 Prosecutor v. Tadić, Case IT–94–1–AR72, Appeal on Jurisdiction (Oct. 2, 1995) [hereinafter Decision].

2 Prosecutor v. Tadić, Case IT–94–1–T, Decision on Jurisdiction (Aug. 10, 1995).

3 Decision, supra note 1, at 4, para. 6. Article 72(B) of the Tribunal’s Rules of Procedure permits interlocutory appeals of preliminary motions only “in the case of dismissal of an objection based on lack of jurisdiction.”

4 Article 9, paragraph 2 of the Statute, UN Doc. S/25704, annex (1993), 32 ILM 1192 (1993), establishes primacy over national courts.

5 Judge Li dissented vigorously from the examination by the Tribunal of the legitimacy of its establishment by the Security Council, calling it “ultra vires and unlawful.” Case IT–94–1–AR72, Separate Opinion of Judge Li, at 1, para. 2.

6 Decision, supra note 1, at 22, para. 45.

7 Id. at 24, para. 47.

8 Id. at 28–33, paras. 55–60.

9 Id. at 37–38, para. 70.

10 Id. at 35, para. 65.

11 Report pursuant to paragraph 2 of Security Council Resolution 808 (1993), UN Doc. S/25704, supra note 4, at 9, para. 39.

12 Report annexed to a letter dated May 24, 1994, from the Secretary-General to the President of the Security Council, UN Doc. S/1994/674, at 13, para. 44 (May 27, 1994).

13 Theodor Meron, International Criminalization of Internal Atrocities, 89 AJIL 554, 556 (1995).

14 Report, supra note 11, at 16, para. 62.

15 Decision, supra note 1, at 39, para. 72.

16 Id.

17 Decision, supra note 1, at 39–40, para. 73.

18 Id. at 42–43, para. 76.

19 Id. at 44, para. 78.

20 Id. at 48, para. 84.

21 Id., para. 85.

22 Decision, supra note 1, at 74, para. 144. I fail to understand this statement, as the defendant was charged with grave breaches under Article 2 of the Statute, which clearly implies breaches of specific provisions of the Geneva Conventions.

23 Id. at 49, para. 87.

24 Id. at 50, para. 88. The appeals chamber made no reference to the grave breaches provisions of Protocol I.

25 Id. at 52–53, 74, paras. 94, 143.

26 Id. at 53–71, paras. 96–136.

27 Case IT–94–1–AR72, Separate Opinion of Judge Abi-Saab, pt. IV, at 4.

28 Id. at 5.

29 Decision, supra note 1, at 75, para. 146.

30 Case IT–94–1–AR72, Separate Opinion of Judge Sidhwa, at 71–73, para. 122.

31 Id. at 65–66, para. 117.

32 Separate Opinion of Judge Li, supra note 5, at 4, para. 12.

33 Id, para. 13.

34 Id. at 5–8, paras. 14–20.

35 In a decision of October 20, 1995, which confirmed the indictment in the Nikolić case under Article 61 of the Rules of Procedure and Evidence, a trial chamber found, in light of expert evidence, that the conflict was international and that Article 2 on grave breaches was therefore applicable. Prosecutor v. Nikolić, Case IT–94–2–R61, Review of Indictment Pursuant to Rule 61 (Oct. 20, 1995).