FROM: Mathilde Renou
TO: Ms. Charlotte Irwin
RE: Memorandum on Prosecutor v. Dusko Tadic, Decision on Interlocutory Appeal on Jurisdiction, ICTY Appeals Chamber
DATE: December 06, 2013
FACTS
Dusko Tadic is a Bosnian Serb accused of crimes against humanity amongst which the foremost were the collection, the mistreatment and the killing of Bosnian Muslims and Croats in the former Yugoslavia in 1992. Also known as “Dule” Tadic, this former leader of Serbian paramilitary forces has been indicted in 1995 . The Defence team had fulfilled a preliminary motion for dismissal of the charges based on the tribunal lack of jurisdiction which was primarily rejected by the Trial Chamber which refused, amongst others, to investigate the legitimacy of the creation of the tribunal . From this dismissal, the Defence team filed an interlocutory appeal to contest, amongst others, the “illegal foundation of the International Tribunal .”
ISSUE
Dusko Tadic (hereinafter the Appellant) contested the jurisdiction (or the “competence” as it is referred in the French version of the case) of the International Criminal Tribunal for the former Yugoslavia (ICTY) and alleged “an error of law on the part of the Trial Chamber ”, and contested particularly the legitimacy of the establishment of the Tribunal. Therefore the questions are the following. Does the Tribunal has the power to determine its own jurisdiction, i.e. its legal foundation by asserting the principle of “compétence de la competence”? By extension, does the UN Security Council acting under Chapter VII of the United Nations Charter is lawfully entitled to establish an international criminal tribunal?
RULE
Under article 36(6) Statute of the Court , the Court asserted its right to the principle of...
... middle of paper ...
... of Procedure , and rejected the first ground of appeal of the Appellant based on an unlawful establishment of the International Tribunal .
CONCLUSION
The Appeals Chamber rejected the heading of the appellant related to the lack of jurisdiction of the ICTY by asserting its power to determine its own jurisdiction. The Court affirmed its “compétence de la compétence” under Article 36 (6) ICJ Statute by arguing that the tribunal has been lawfully and legitimately founded under Chapter VII of the United Nations and reaffirmed that The UN Security Council had the legitimacy to establish a “subsidiary organ”, i.e. a tribunal, under international law respecting the rule of law.
By ruling on this decision, the Court has asserted its capacity to determine and to exercise its competence on its own jurisdiction, best known as the principle of “compétence de la compétence”.
Q1 THE COURT/S IN WHICH THE CASE WAS HEARD (OUTLINE THE CRIMINAL JURISDICTION OF THE COURT)
1. The court stated that they did have power to hear this case: "Since the court has consistently exercised the power to construe and delineate claims arising under express powers, it must follow that the Court has authority to interpret claims with respect to powers alleged to derive from enumerated powers."
which occurs against the discrimination of the private individuals, this is based on the first section which applies to the actions of the general violates even if not always do occurs for the state agents.
Reece H., ‘The paramountcy principle Consensus or construct?’ [1996] 49 Current Legal Problems p. 267-304
H W R Wade ‘The Basis of Legal Sovereignty’ (1995) 172 Cambridge Law Journal 186.
Hoare, Marko A. "Bosnia-Herzegovina and International Justice: Past Failures and Future Solutions." East European Politics and Societies 24.191 (2010). SAGE Journals Online. Web. 18 Apr. 2011.
The Bosnian Serb military are the ones who started and committed the Bosnian genocide and other crimes against humanity. The ICTY charged over 160 individuals for crimes they have committed during the conflict in Yugoslavia.
...riminal Tribunal for the Former Yugoslavia (ICTY) charged more than 160 people who committed crimes in the former country of Yugoslavia. Milosevic was charged and was his own lawyer but due to his deteriorating health levels, the trials were continuously delayed until he was found head in his prison cell in 2006, which was 4 years after he was first charged with one count of genocide, one count of complicity with genocide, and an additional 27 counts of war crimes and crimes against humanity (5) There were some convictions to people who took part in the crimes, but the leader of the movement never actually faced repercussions for his illegal acts. Also, the political leader of the Bosnian Serbs, Karadzic, and the general of the Army, Mladic, have been under indictment for their affiliation with the war crimes but have yet to be arrested for these same acts. (4,5)
The Incorporated Council of Law Reporting for England & Wales. - Counsel [24] See footnote 22 – but page 61 [25] GEOFFREY, Marshall, Constitutional Theory, Clarendon Law Series, Oxford 1971 Chapter1 – the Law and the constitution, part 3. Dicey’s doctrine and its critics. [26] REGINA v HER MAJESTY'S TREASURY, Ex parte SMEDLEY, [COURT OF APPEAL], [1985] Q B 657, 19 December 1984, (c)2001 The Incorporated Council of Law Reporting for England & Wales [27] MITCHELL, JDB, Constitutional Law, 2nd edition, Edinburgh, W Green & SON LTD, 1968, Convention, page 31 [28] See footnote 22 but page 64
The judicial statement of Roskill LJ observed in The Albazero [1977] AC774 held plenty of arguments in modern world today. To reach an extent of agree or disagree the judicial statement, it should be critically analysed from a legal perspective:
According to the Treaty the purpose of the Court is to 'ensure that in the interpretation and application of this Treaty the law is observed'[5]. It was under the guise of 'interpretation' and in particular the use of Article 234[6] that the court was able to attribute qualities to the Treaty that were not prima facie evident. This essay will trace how the court in conjunction with national courts used this Article to develop the doctrines of direct effect and supremacy, and how it expanded the use of such doctrines to law created under the Treaty which neither explicitly or impliedly warranted their ascription. The doctrines thus mentioned attributed to the Treaty, characteristics more in line... ...
While Deskovic and the court fight and got him in jail, Deskovic still find research for his justice and the court finding the truth of which side are lying or something not really find out. What I can learn from this doesn't anybody and take care yourself in every time. Like Deskovic that say "To hear the judge who put procedure over innocence could be moving to a higher court is very upsetting to me" which mean that he has to go to jail that he didn't do anything wrong and the jury didn't believe
“On November 21, 1947, the General Assembly of the United Nations adopted resolution 174 (II), establishing the International Law Commission and approving its statute.”[2] The International Law Commission encourages the development of international law and its codification. The Commission deals primarily with public international law, but also hears private cases as well.[3] International law is applied within an international community, such as the United Nations, and functions to define the proper norms or standards for members to abide by in a collective manner. Examples of such standards could be a ruling on The Universal Declaration of Human Rights or on threats to peace within the International Community.
1.The strict supremacy of statute over judicial decisions and a tradition of literalism in statutory interpretation, 2. Where no legislation exists, the courts are bound by the doctrine of precedent in accordance with a strict hierarchy of judicial authority, 3. In the absence of a relevant precedent, the judges will be guided by legal principle and reasoning by analogy, and 4. There is clear way of distinguishing the ratio of a case…
The grounds of judicial review help judges uphold constitutional principles by, ensuring discretionary power of public bodies correspond with inter alia the rule of law. I will discuss the grounds of illegality, irrationality and proportionality in relation to examining what case law reveals about the purpose and effect these grounds.