Bosnian Serb Dusko Tadic made a motion to dismiss all charges against him on the grounds that the war crimes tribunal, created by the United Nations, lacks jurisdiction and legitimacy. This is the August 8, 1995 opinion of the tribunal dismissing the motion.

UNITED NATIONS

International Tribunal for the Prosecution of Persons Responsible for
Serious Violations of International Humanitarian Law Committed in the
Territory of Former Yugoslavia since 1991

 Case No.  IT-94-1-T Date:   10 August 1995 Original: English

 IN THE TRIAL CHAMBER

 Before:

Judge McDonald, Presiding Judge Stephen Judge Vohrah

 Registrar: Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision: 10 August 1995

 PROSECUTOR

v.

DUSKO TADIC A/K/A "DULE"

 DECISION ON THE DEFENCE MOTION ON JURISDICTION

 The Office of the Prosecutor:

Mr. Grant Niemann Mr. Alan Tieger Mr. Michael Keegan Ms. Brenda Hollis
Mr. William Fenrick

 Counsel the Accused:

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



DECISION

    On 23 June 1995 the Defence filed a preliminary motion, pursuant
to Rule 73 (A) (i) of the Rules of Procedure and Evidence ("the
Rules") which provides for objections based on lack of jurisdiction,
seeking dismissal of all of the charges against the accused. The
Defence motion challenges the powers of the International Tribunal for
the Prosecution of Person Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
Former Yugoslavia since 1991 ("the International Tribunal") to try the
accused under three heads: the alleged improper establishment of the
International Tribunal; the improper grant of primacy to the
International Tribunal; and challenges to the subject-matter
jurisdiction of the International Tribunal. The Prosecutor contends
that none of these points is valid and that the International Tribunal
has jurisdiction over the accused as charged. The Government of the
United States of America has submitted a brief as amicus curiae.

   The argument of the parties on this motion was heard on 25 and 26
July and judgment on the motion was reserved, to be delivered this
day.

    THE TRIAL CHAMBER, HAVING CONSIDERED the written submissions and
oral arguments of the parties and the written submission of the amicus
curiae,

 REASONS FOR DECISION

I. The Establishment of the International Tribunal

A. Legitimacy of creation

 1. The attack on the competence of the International Tribunal in this
case is based on a number of grounds, some of which may be subsumed
under one general heading: that the action of the Security Council in
establishing the International Tribunal and in adopting the Statute
under which it functions is beyond power; hence the International
Tribunal is not duly established by law and cannot try the accused.

 2. It is said that, to be duly established by law, 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. Called in aid of this general
proposition are a number of considerations: that before the creation
of the International Tribunal in 1993 it was never envisaged that such
an ad hoc criminal tribunal might be set up; that the General
Assembly, whose participation would at least have guaranteed full
representation of the international community, was not involved in its
creation; that it was never intended by the Charter that the Security
Council should, under Chapter VII, establish a judicial body, let
alone a criminal tribunal; that the Security Council had been
inconsistent in creating this tribunal while not taking a similar step
in the case of other 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 of promoting, international peace, as the current
situation in the former Yugoslavia demonstrates; that the Security
Council could not, in any event, create criminal liability on the part
of individuals and that this is what the creation of the International
Tribunal did; that there existed and exists now no such international
emergency as would justify the action of the Security Council; that no
political organ such as the Security Council is capable of
establishing an independent and impartial tribunal; that there is an
inherent defect in the creation, after the event, of ad hoc tribunals
to try particular types of offences and, finally, that to give the
International Tribunal primacy over national courts is, in any event
and in itself, inherently wrong.

3.   Essential to these submissions is, of course, the concept that
this Trial Chamber has the capacity to review and rule upon the
legality of the acts of the Security Council in establishing the
International Tribunal. This the Defence asserts, doing so by way of
attack upon the jurisdiction of the International Tribunal.

4.   There are, clearly enough, matters of jurisdiction which are open
to determination by the International Tribunal, questions of time,
place and nature of an offence charged. These are properly described
as jurisdictional, whereas the validity of the creation of the
International Tribunal is not truly a matter of jurisdiction but
rather of the lawfulness of its creation, involving scrutiny of the
powers of the Security Council and of the manner of their exercise;
perhaps, too, of the appropriateness of its response to the situation
in the former Yugoslavia.

5.   The Trial Chamber has heard out the Defence in its submissions
involving judicial review of the actions of the Security Council.
However, this International Tribunal is not a constitutional court set
up to scrutinise the actions of organs of 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 to those specific limits, it will have no
authority to investigate the legality of its creation by the Security
Council.

6.  The force of criminal law draws its efficacy, in part, from the
fact that it reflects a consensus on what is demanded of human
behaviour. But it is of equal importance that a body that judges the
criminality of this behaviour should be viewed as legitimate. This is
the first time that the international community has created a court
with criminal jurisdiction. The establishment of the International
Tribunal has now spawned the creation of an ad hoc Tribunal for
Rwanda. Each of these ad hoc Tribunals represents an important step
towards the establishment of a permanent international criminal
tribunal. In this context, the Trial Chamber considers that it would
be inappropriate to dismiss without comment the accused's contentions
that the establishment of the International Tribunal by the Security
Council was beyond power and an ill-founded political action, not
reasonably aimed at restoring and maintaining peace, and that the
International Tribunal is not duly established by law.

7.   Any discussion of this matter must begin with the Charter of the
United Nations. Article 24 (1) provides that the Members of the United
Nations:

"confer on the Security Council primary responsibility for the
maintenance of international peace and security, and agree that in
carrying out its duties under this responsibility the Security Council
acts on their behalf."

The powers of the Security Council to discharge its primary
responsibility for the maintenance of international peace and security
are set out in Chapters VI, VII, VIII and XII of the Charter. The
International Tribunal was established under Chapter VII. The Security
Council has broad discretion in exercising its authority under Chapter
VII and there are few limits on the exercise of that power. As
indicated by the travaux preparatoires:

"Wide freedom of judgment is left as regards the moment [the Security
Council] may choose to intervene and the means to be applied, with
sole reserve that it should act `in accordance with the purposes and
principles of the [United Nations'."

(See Statement of the Rapporteur of Committee III/3, Doc. 134,
IIE/3/3, 11 U.N.C.I.O. Docs. 785 (1945).)

The broad discretion given to the Security Council in the exercise of
its Chapter VII authority itself suggests that decisions taken under
this head are not reviewable.

8.  For the Defence it is said that it is a basic human right of an
accused to have a fair and public hearing by a competent, independent
and impartial tribunal established by law. The Defence asserts that
this right is protected by a panoply of principles of fundamental
justice recognized by human rights law. There can be no doubt that the
International Tribunal should seek to provide just such a trial;
indeed, in enacting its Statute, care has been taken by the Security
Council to ensure that this in fact occurs and the Judges of the
International Tribunal, in framing its Rules, have also paid
scrupulous regard to the requirements of a fair trial. For example,
Article 21 of the Statute of the International Tribunal guarantees the
accused the right to a fair trial and Article 20 obligates the Trial
Chambers to ensure that trials are. in fact, fair. There are several
other provisions to the same effect. However, it is one thing for the
Security Council to have taken every care to ensure that a structure
appropriate to the conduct of fair trials has been created; it is an
entirely different thing in any way to infer from that careful
structuring that it was intended that the International Tribunal be
empowered to question the legality of the law which established it.
The competence of the International Tribunal is precise and narrowly
defined; as described in Article I of its Statute, it is to prosecute
persons responsible for serious violations of international
humanitarian law, subject to spatial and temporal limits, and to do so
in accordance with the Statute. That is the full extent of the
competence of the International Tribunal.

9.  The Defence seeks to extend the competence of the International
Tribunal to review the actions of the Security Council by reference to
the Rules of the International Tribunal. It refers first to Rule 73
(A)(i), which provides that preliminary motions by the accused can
include: "objections based on lack of jurisdiction". That Rule relates
to challenges to jurisdiction and is no authority for engaging in an
investigation, not into jurisdiction, but into the legality of the
action of the Security Council in establishing the International
Tribunal. The Defence also points to Rule 91, False Testimony Under
Solemn Declaration, as an example of the exercise by the International
Tribunal of powers that are not explicitly provided for in its
Statute. There is, however, no analogy to be drawn between the
inherent authority of a Chamber to control its own proceedings and any
suggested power to review the authority of the Security Council.
Therefore, even were it conceivable that the Rules adopted by the
Judges could extend the competence of the International Tribunal, the
Rules referred to by the Defence do not support such an enlargement.

10.  The Defence relies on, or at least refers to, what has been said
by the International Court of Justice ("the Court") in three cases:
Certain Expenses of the United Nations, 1962 I.C.J. 151, 168 (Advisory
Opinion of 20 July) (the "Expenses Advisory Opinion"), Legal
Consequences for States of the Continued Presence of South Africa in
Namibia (South-West Africa) Notwithstanding Security Council
Resolution 776, 1971 I.C.I. 16, 45 (Advisory Opinion of 21 June) (the
"Namibia Advisory Opinion ") and Questions of Interpretation and
Application of the 1971 Montreal Convention Arising from the Aerial
Incident at Lockerbie (Libya v. U.S.), 1992 I.C.J. 114, 176
(Provisional Measures Order of 14 April) (the "Lockerbie decision").
In the first of these, the Expenses Advisory Opinion, the Court
specifically stated that, unlike the legal system of some States,
there exists no procedure for determining the validity of acts of
organs of the United Nations. It referred to proposals at the time of
drafting of the Charter that such a power should be given to the Court
and to the rejection of those proposals.

11.  In the second of these cases, the Namibia Advisory Opinion, the
Court dealt very specifically with this matter, stating that:
"Undoubtedly, the Court does not possess powers of judicial review or
appeal in respect of the decisions taken by the United Nations organs
concerned".

12.  Finally, in the Lockerbie decision, Judge Weeramantry, in his
dissenting opinion, but in this respect not in dissent from other
members of the Court, said that "it is not for this Court to sit in
review on a given resolution of the Security Council" and, that in
relation to the exercise by the Security Council of its powers under
Chapter VII:

"the determination under Article 39 of the existence of any threat to
the peace ... is one entirely within the discretion of the Council....
the Council and no other is the judge of the existence of the state of
affairs which brings Chapter VII into operation.... Once [such a
determination is] taken the door is opened to the various decisions
the Council may make under that Chapter."

13.  These opinions of the Court clearly provide no basis for the
International Tribunal to review the actions of the Security Council,
indeed, they are authorities to the contrary.

14.  In support of its submission that this Trial Chamber should
review the actions of the Security Council, the Defence contends that
the decisions of the Security Council are not sacrosanct". Certainly,
commentators have suggested that there are limits to the authority of
the Security Council. It has been posited that such limits may be
based on Article 24 (2), which pro- ides that the Security Council:

"shall act in accordance with the Purposes and Principles of the
United Nations. The specific powers appointed to the Security Council
for the discharge of these duties are laid down in Chapters VI, VII,
VIII, and XII."

One commentator interprets this provision to mean that the Security
Council "cannot, in principle. act arbitrarily and unfettered by any
restraints." (D. W. Bowett, The Law of International Institutions 33
(1982).) Another commentator has taken the position that although the
Security Council has broad discretion in the field of international
peace and security, it cannot "act arbitrarily or use the existence of
a threat to the peace as a basis for action which . . . is for
collateral and independent purposes, such as the overthrow of a
government or the partition of a State." (Ian Brownlie, The Decisions
of Political Organs of the United Nations and the Rule of Law, in
Essays in Honour of Wang Tieya 95 (1992).)

15.  Support for the view that the Security Council cannot act
arbitrarily or for an ulterior purpose is found in the nature of the
Charter as a treaty delegating certain powers to the United Nations.
In fact, such a limitation is almost a corollary of the principle that
the organs of the United Nations must act in accordance with the
powers delegated them. It is a matter of logic that if the Security
Council acted arbitrarily or for an ulterior purpose it would be
acting outside the purview of the powers delegated to it in the
Charter.

16.  Although it is not for this Trial Chamber to judge the
reasonableness of the acts of the Security Council, it is without
doubt that, with respect to the former Yugoslavia, the Security
Council did not act arbitrarily. To the contrary, the Security
Council's establishment of the International Tribunal represents its
informed judgment, after great deliberation, that violations of
international humanitarian law were occurring in the former Yugoslavia
and that such violations created a threat to the peace. One
commentator has noted the "careful, incremental approach" of the
Security Council to the situation in the former Yugoslavia and
described the establishment of the International Tribunal as a
protracted, four-step process involving: "(I) condemnation; (2)
publication; (3) investigation; and (4) punishment." (James C.
O'Brien, The International Tribunal for Violations of International
Humanitarian Law in the Former Yugoslavia, 87 Am. J. Int'l L. 639,
640-42 (1993).) First, with its resolution 764, adopted on 13 July
1992, the Security Council stressed that ';persons who commit or order
the commission of grave breaches of the [1949 Geneva] Conventions are
individually responsible in respect of such breaches". Second, the
Security Council publicized this condemnation by adopting, on 12
August 1992, resolution 771, which called upon States and other bodies
to submit "substantiated information" to the Secretary-General, who
would report to the Security Council ' recommending additional
measures that might be appropriate . Third, by resolution 780 of 6
October 1992, the Security Council established the Commission of
Experts to investigate these violations of international humanitarian
law. The Security Council in due course received the report of the
Commission of Experts, which concluded that grave breaches of the 1949
Geneva Conventions and other violations of international humanitarian
law had been committed in the territory of the former Yugoslavia,
including wilful killing, "ethnic cleansing," mass killings, torture,
rape, pillage and destruction of civilian property, destruction of
cultural and religious property and arbitrary arrests. (See Interim
Report of the Commission of Experts, U.N. Doc. S/25274 (26 January
1993).) Finally, on 22 February 1993, by resolution 808, the Security
Council decided that an international tribunal should be established
and directed the Secretary-General to submit specific proposals for
the implementation of that decision. On 25 May 1993, in resolution
827, the Security Council adopted the draft Statute and thus
established the International Tribunal.

17.  None of the hypothetical cases which commentators have suggested
as examples of limits on the powers of the Security Council, whether
imposed by the terms of the Charter or general principles of
international law and, in particular, jus cogens, have any relevance
to the present case. Moreover, even if there be such limits, that is
not to say that any judicial body, let alone this International
Tribunal, can exercise powers of judicial review to determine whether,
in relation to an exercise by the Security Council of powers under
Chapter VII, those limits have been exceeded.

18.  One may add that in the present case any submission to the
contrary becomes particularly unattractive when, in the notorious
circumstances of the former Yugoslavia, the Security Council has done
no more than take the step of "ameliorating a threat to international
peace and security by providing for the prosecution of individuals who
violate well-established international law.... [something] best
addressed by a judicial remedy". (O'Brien, supra, at 643.)

19.  It is not irrelevant that what the Security Council has enacted
under Chapter VII is the creation of a tribunal whose jurisdiction is
expressly confined to the prosecution of breaches of international
humanitarian law that are beyond any doubt part of customary law, not
the establishment of some eccentric and novel code of conduct or some
wholly irrational criterion as the possession of white hair, as was
instanced in argument by the Defence. Arguments based upon reductio ad
absurdum may be useful to destroy a fallacious proposition but will
seldom provide a firm foundation for the creation of a valid one.

20.  In argument the spectre was raised of interference by the
Security Council in the proceedings of the International Tribunal, for
instance, by the abolition of the International Tribunal, in midstream
as it were, for wholly political reasons. No doubt this would be
within the power of the Security Council, but so too is like action in
a national context. National legislatures, with greater or lesser
ease, depending upon their powers under their respective constitutions
or governing laws, may abolish courts previously created but this in
no way detracts from the status of those courts as entities
established by law.

21.  The Security Council established the International Tribunal as an
enforcement measure under Chapter VII of the United Nations Charter
after finding that the violations of international humanitarian law in
the former Yugoslavia constituted a threat to the peace. In making
this finding, the Security Council acted under Article 39 of the
Charter, which provides:

"The Security Council shall determine the existence of any threat to
peace, breach of peace, or act of aggression and shall make
recommendations, or decide what measures shall be taken in accordance
with Articles 41 and 42, to maintain or restore international peace
and security."

22.  When, in resolution 827, the Security Council stated that it was
"convinced" that, in the ' particular circumstances of the former
Yugoslavia", the establishment of the International Tribunal would
contribute to the restoration and maintenance of peace, the course it
took was novel only in the means adopted but not in the object sought
to be attained. The Security Council has on a number of occasions
addressed humanitarian law issues in the context of threats to the
peace, has called upon States to comply with obligations imposed by
humanitarian law and has on occasion taken steps to ensure such
compliance. It has done so, for example. in relation to Southern
Rhodesia in 1965 and 1966, South Africa in 1977, Lebanon on a number
of occasions in the 1980's, Iran and Iraq in 1987, Iraq again in 1991,
Haiti and Somalia in 1993 and, of course, Rwanda in 1994. In the last
of these, the establishment of the Rwanda Tribunal by the Security
Council followed its finding that the conflict there involved
violations of humanitarian law and was a threat to the peace.

23.  The making of a judgment as to whether there was such an
emergency in the former Yugoslavia as would justify the setting up of
the International Tribunal under Chapter VII is eminently one for the
Security Council and only for it; it is certainly not a justiciable
issue but one involving considerations of high policy and of a
political nature. As to whether the particular measure of establishing
the International Tribunal is, in fact, likely to be conducive to the
restoration of peace and security is, again, pre-eminently a matter
for the Security Council and for it alone and no judicial body,
certainly not this Trial Chamber, can or should review that step.

24.  The concept of non-justiciability, in a national context. has
been described as follows:

"Prominent on the surface of any case held to involve a political
question is found a textually demonstrable constitutional commitment
of the issue to a co-ordinate political department; or a lack of
judicially discoverable and manageable standards for resolving it; or
the impossibility of deciding without an initial policy determination
of a kind clearly for nonjudicial discretion; or the impossibility of
a court's undertaking independent resolution without expressing lack
of the respect due co-ordinate branches of government; or an unusual
need for unquestioning adherence to a political decision already made;
or the potentiality of embarrassment from multifarious pronouncements
by various departments on one question."  

 (Baker v. Carr, 369 U.S. 186, 217 (1962).)

The validity of the decision of the Security Council to establish the
International Tribunal rests on its finding that the events in the
former Yugoslavia constituted a threat to the peace. This finding is
necessarily fact-based and raises political, nonjusticiable issues. As
noted by Judge Weeramantry, such a decision ' entails a factual and
political judgement and not a legal one". (The Lockerbie decision at
176.) A commentator has agreed, saying that "a threat to international
peace and security is not a fixed standard which can be easily and
automatically applied '. (David L. Johnson, Note, Sanctions and South
Africa, 19 Harv. Int'l L.J. 887, 901 (1978).) The factual and
political nature of an Article 39 determination by the Security
Council makes it inherently inappropriate for any review by this Trial
Chamber.

25.  The Defence contends that there has been a lack of consistency in
the actions of the Security Council. Certainly the International
Tribunal is the first of its kind to be created. However, the fact
that the Security Council has not taken a similar step in other,
earlier cases cannot in itself be of any relevance in determining the
legality of its action in this case.

26.  Article 41 of the Charter provides:

"The Security Council may decide what measures not involving the use
of armed force are to be employed to give effect to its decisions, and
it may call upon the Members of the United Nations to apply such
measures. These may include complete or partial interruption of
economic relations and of rail, sea, air, postal, telegraphic, radio,
and other means of communication, and the severance of diplomatic
relations."

The Article, on its face, does not limit the discretion of the
Security Council to take measures not involving the use of armed
force.

27.  That it was not originally envisaged that an ad hoc judicial
tribunal might be created under Chapter VII, even if that be factually
correct, is nothing to the point. Chapter VII confers very wide powers
upon the Security Council and no good reason has been advanced why
Article 41 should be read as excluding the step, very appropriate in
the circumstances, of creating the International Tribunal to deal with
the notorious situation existing in the former Yugoslavia. This is a
situation clearly suited to adjudication by a tribunal and punishment
of those found guilty of crimes that violate international
humanitarian law. This is not, as the Defence puts it, a question of
the Security Council doing anything it likes; it is a seemingly
entirely appropriate reaction to a situation in which international
peace is clearly endangered.

28.  The Defence argues that the establishment of the International
Tribunal is not a measure contemplated by Article 41 because the
examples included in that Article focus on economic and political
measures, not judicial measures. As the Defence concedes, however, the
list in that Article is not exhaustive. Once again, the decision of
the Security Council in this regard is fraught with fact-based, policy
determinations that make this issue non-justiciable.

29.  Further, the Defence contends that the International Tribunal is
not an appropriate measure under Article 41 because it has failed to
restore peace in the former Yugoslavia. However, the accused is but
the first and, as yet, the only accused to be brought before the
International Tribunal, and it is wholly premature at this initial
stage of its functioning to attempt to assess the effectiveness of the
International Tribunal as a measure to restore peace, even were it the
function of the International Tribunal to do so.

30.  The Security Council discussions on the situation in the former
Yugoslavia suggest two ways in which the International Tribunal would
help in the restoring and maintaining of peace. First, several States
expressed the view that the creation of the International Tribunal
would deter further violations of international humanitarian law. (See
Provisional Verbatim Record, U.N. SCOR, 48th Sess., 3175th mtg. at 8,
22, U.N. Doc. S/PV.3175 (22 February 1993); Provisional Verbatim
Record, U.N. SCOR, 48th Sess., 3217th mtg. at 12, 19, U.N. Doc.
S/PV.3217 (25 May 1993).)

31.  Second, States took the position that the establishment of the
International Tribunal would assist in the restoration of peace in the
region. At the Security Council meeting on resolution 808, Hungary, in
supporting the establishment of the International Tribunal, explained
how the International Tribunal would be helpful in this regard:

"The way the international community deals with questions relating to
the events in the former Yugoslavia will leave a profound mark on the
future of that part of Europe, and beyond. It will make either easier
or more painful, or even impossible, the healing of the psychological
wounds the conflict has inflicted upon peoples who for centuries have
lived together in harmony and good-neighbourliness, regardless of what
we may hear today from certain parties to the conflict. We cannot
forget that the peoples, the ethnic communities and the national
minorities of Central and Eastern Europe are watching us and following
our work with close attention."

(Provisional Verbatim Record of 22 February 1993, supra, at 19-20.)

Slovenia also indicated its conviction that:

"[T]he establishment of such a tribunal is a necessary and very
important step, given the fact that those responsible for such crimes
would be judged by an impartial judicial body as well as the fact that
it could also contribute positively to the finding of solutions for
the restoration of peace in the above-mentioned regions."

(Letter from the Permanent Representative of Slovenia to the United
Nations, to the Secretary-General, U.N. Doc. S/256552 (22 April
1993).)

Similarly, a commentator who has written extensively about the
International Tribunal has stated:

"[I]T is important to try individuals responsible for crimes if there
is to be any real hope of defusing ethnic tensions in this region.
Blame should not rest on an entire nation but should be assigned to
individual perpetrators of crimes and responsible leaders."

(Theodor Meron, Case for War Crimes Trials in Yugoslavia, 72 Foreign
Affairs 122, 134 (1993).)

The Trial Chamber agrees that due to the nature of the conflict, an
adjudicatory body is a particularly appropriate measure to achieve
lasting peace in the former Yugoslavia. In any case. the ultimate
success or failure of the International Tribunal is certainly not an
issue for this Trial Chamber.

32.  Then it iS said that international law requires that criminal
courts be independent and impartial and that no court created by a
political body such as the Security Council can have those
characteristics. Of course, criminal courts worldwide are the
creations of legislatures, eminently political bodies. The Court, in
the Effect of Awards case, specifically held that a political organ of
the United Nations - in that case, the General Assembly - could and
had created ' an independent and truly judicial body". (Effect of
Awards of Compensation Made by the United Nations Administrative
Tribunal, 1954 I.C.I. 47, 53 (Advisory Opinion of 13 July) ( Effect of
Awards").) The question whether a court is independent and impartial
depends not upon the body that creates it but upon its constitution,
its judges and the way in which they function. The International
Tribunal has, as its Statute and Rules attest, been constituted so as
to ensure a fair trial to an accused and it is to be hoped that the
way its Judges administer their jurisdiction will leave no room for
complaints about lack of impartiality or want of independence.

33.  The fact that the Security Council has established an ad hoc
tribunal is also said to reveal invalidity because it is said to deny
to the accused the right conferred by Article 14 of the International
Convention on the Protection of Civil and Political Rights ("ICCPR")
to be tried by a tribunal "established by law". However, on analysis
this introduces no new concept; it is but another way of expressing
the general complaint that the creation of the International Tribunal
was beyond the power of the Security Council.

34. It is noteworthy that, in the context of the International
Covenant and its entitlement in Article 14 to trial by a "tribunal
established by law", this phrase requires only that the tribunal be
legally constituted. At the time Article 14 was being drafted, it was
sought unsuccessfully to amend it to require that tribunals should be
"pre-established". As Professor David Harris puts it in his article
The Right to a Fair Trial in Criminal Proceedings as a Human Right, 16
I.C.L.Q. 353, 356 (1967):

"An amendment which sought to change the wording of the United Nations
text to read 'pre-established' and so cover all ad hoc or special
tribunals was firmly and successfully opposed, however, on the ground
that this would make normal judicial reorganization difficult. Mention
was also made of the Nuremberg and Tokyo Tribunals which were ad hoc
and yet which, it is generally agreed, gave the accused a fair trial
in a procedural sense in most respects. ... the important
consideration is whether a court observes certain other requirements
once it begins to function, however it might be created."

35.  It is also argued that Article 29 of Chapter VI of the Charter
does not contemplate the creation by the Security Council of an
international judicial body when it refers to the creation of
subsidiary organs. The reasoning behind this submission is no more
than an assertion that a judicial body cannot be an additional organ
of some other body; yet Article 29 is expressed in the broadest terms
and nothing appears to limit its scope to nonjudicial organs. In any
event, it is not under Chapter VI of the Charter that the Security
Council has established this Tribunal; as the Statute of the
International Tribunal declares in its opening paragraph, it is as a
measure under Chapter VII that the Security Council has created this
International Tribunal. Moreover, in the Effect of Awards case
mentioned above, the Court specifically decided that the General
Assembly had the power to create an administrative tribunal. (Effect
of Awards case at 56-61.) If the General Assembly has the authority to
create a subsidiary judicial body, then surely the Security Council
can create such a body in the exercise of its wide discretion to act
under Chapter VII.

36.  Nor has any basis been established for denying to the Security
Council the power of indirect imposition of criminal liability upon
individuals through the creation of a tribunal having criminal
jurisdiction. On the contrary, given that the Security Council found
that the threat to the peace posed by the conflict in the former
Yugoslavia arose because of large scale violations of international
humanitarian law committed by individuals, it was both appropriate and
necessary for the Security Council, through the International
Tribunal, to act on individuals in order to address the threat to the
peace. In this regard it is important that when, in its resolutions
731 and 748, the Security Council required the Libyan Government to
surrender the two Libyan nationals who were accused of the Lockerbie
bombing and imposed mandatory commercial and diplomatic sanctions to
obtain Libya's compliance with its decision, it was, in substance,
acting upon individuals, seeking, the extradition and trial of those
Libyan nationals.

37.  Reference was also made to the jus de non evocando, a feature of
a number of national constitutions. But that principle, if it requires
that an accused be tried by the regularly established courts and not
by some special tribunal set up for that particular purpose, has no
application when what is in issue is the exercise by the Security
Council, acting under Chapter VII, of the powers conferred upon it by
the Charter of the United Nations. Of course, this involves some
surrender of sovereignty by the member nations of the United Nations
but that is precisely what was achieved by the adoption of the
Charter. In particular, that was achieved, in the case of action by
the Security Council under Chapter VII, by Article 2(7) of the Charter
and its reference to the application of enforcement measures under
Chapter VII. The same observation applies to the contention that there
is some vice involved in the conferring of primacy upon this Tribunal.
That is no more than a means by which the Security Council seeks to
give effect to the powers conferred upon it by Chapter VII. In any
event it is by no means clear that an individual defendant has
standing to raise this point.

38. The submission that there should have been involvement of the
General Assembly in the creation of the International Tribunal can
only have any meaning if what is suggested is the creation of a
tribunal by means of an amendment of the Charter. If, however, the
International Tribunal can, as seems clear, be created under Chapter
VII, the suggestion of an amendment of the Charter is as unnecessary,
as it is impractical as a measure appropriate by way of a response to
the current situation in the former Yugoslavia.

39. It was claimed on behalf of the accused that he was disadvantaged
by his removal from the jurisdiction of German courts to that of the
International Tribunal since that denied him the opportunity under the
optional Protocol to the ICCPR to have recourse to the Human Rights
Committee to complain about the trial accorded him. No doubt this is
so, since that right does not appear to apply to proceedings before
international tribunals, but that is nothing to the point in any
challenge to the jurisdiction of this Trial Chamber; it can only be
remedied, if remedy is required, by a further Protocol to the ICCPR. A
similar comment applies in the case of the European Convention on
Human Rights, to which the Defence also refers.

40. The foregoing disposes of the various submissions of the Defence
so far as they relate to the legality of the creation of the
International Tribunal, submissions to which the Trial Chamber felt it
proper to refer since the Defence raised them but. many of which, as
stated above, it does not regard as properly open for consideration by
this Trial Chamber since they go, not so much to its jurisdiction, as
to the unreviewable lawfulness of the actions of the Security Council.

B. Primacy of the International Tribunal

41. The Trial Chamber deals next with the Defence argument that the
primacy jurisdiction conferred upon the International Tribunal by
Article 9 (')) finds no basis in international law because the
national courts of Bosnia and Herzegovina or, alternatively, of the
entity known as the Bosnian Serb Republic, have primary jurisdiction
to try the accused. This argument in effect again challenges the
legality of the action of the Security Council in establishing the
International Tribunal: the answer to this has already been provided
above. The Trial Chamber is not entitled to engage in an exercise
involving the review of a resolution passed by the Security Council.
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 State may raise
or waive and a right clearly the accused cannot take over from that
State. (See Israel v. Eichmann, 36 I.L.R. 5, 62 (1961).) In this
regard, it is pertinent to note that the challenge to the primacy of
the International Tribunal has been made against the express intent of
the two States most closely affected by the indictment against the
accused - Bosnia and Herzegovia and the Federal Republic of Germany.
The former, on the territory of which the crimes were allegedly
committed, and the latter where the accused resided at the time of his
arrest, have unconditionally accepted the jurisdiction of the
International Tribunal and 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 to the principles relating to coercive criminal
jurisdiction. As to the entity known as the Bosnian Serb Republic,
similarly, the accused as an individual, has no locus standi, for the
reasons given above, to raise the issue of this entity's sovereignty
rights should it have been endowed with all the attributes of
statehood.

42.  Before leaving this question relating to the violation of the
sovereignty of States, it should be noted that the crimes which the
International Tribunal has been called upon to try arc not crimes of a
purely domestic nature. They are really crimes which are universal in
nature, well recognized in international law as serious breaches of
international humanitarian law. and transcending the interest of any
one State. The Trial Chamber agrees that in such circumstances, 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. There can therefore be no objection to an international
tribunal properly constituted trying these crimes on behalf of the
international community

43.  As to the invocation of jus de non evocando, which has been dealt
with above, nothing more need be said except that the Defence has in
no way established that the principle is so universal in application
that it amounts to a peremptory norm of international law which cannot
be breached in any event. Therefore the Trial Chamber proposes to
speak no more of it.

44.  One final word before leaving this topic. The crimes with which
the accused is charged form part of customary international law and
existed well before the establishment of the International Tribunal.
If the Security Council in its informed wisdom, acting well within its
powers pursuant to Article 39 and 41 under Chapter VII of the Charter,
creates the International Tribunal to share the burden of bringing
perpetrators of universal crimes to justice, the Trial Chamber can see
no invasion into a State's jurisdiction because, as it has been
rightly argued on behalf of the Prosecutor, they were never crimes
within the exclusive jurisdiction of any individual State. In any
event, Article 2 (7) of the Charter, as has been noted above,
prohibiting intervention by the United Nations in matters essentially
within a State's domestic jurisdiction, is qualified in that "this
principle shall not prejudice the application of enforcement measures
under Chapter VII".

II. Subject-Matter Jurisdiction                  

45.  The Trial Chamber must turn now to what are truly matters of
jurisdiction. The Defence contends that the charges laid against the
accused do not fall within the subject-matter jurisdiction of this
Tribunal and it is necessary accordingly to examine the limits of that
jurisdiction.

A. Article 2: Grave Breaches of the Geneva Convention of 1919

46.  The Statute of the International Tribunal confers jurisdiction by
Articles I to 8 and supplements, and in one respect qualifies, that
jurisdiction in Articles 9 and 10. However it is essentially Articles
1. 2. 3 and 5 with which this motion is concerned.

47.  Article I does no more than confer power to prosecute for serious
violations of international humanitarian law and confines that power,
spatially, to breaches committed in the territory of the former
Yugoslavia and, temporally, to the period since 1991. It further
requires that the power thus conferred be exercised in accordance with
the provisions of the Statute.

48.  Article 2 confers subject-matter jurisdiction to prosecute in
respect of grave breaches of the Geneva Conventions and identifies
those breaches by the phrase, "namely the following acts against
persons or property protected under the provisions of the relevant
Geneva Conventions." There then follows an enumeration of acts, culled
from the four Conventions and, with very slight variations, repeating
and in effect consolidating, the terms of the grave breaches
provisions to be found in varying form in each of those Conventions.

49.  The Article has been so drafted as to be self-contained rather
than referential, save for the identification of the victims of
enumerated acts; that identification and that alone involves going to
the Conventions themselves for the definition of "persons or property
protected." In the present case it is not contended that the alleged
victims in the several charges were not protected persons; in any
event that will be a matter for evidence in due course.

50.  What is contended is that for Article 2 to have any application
there must exist a state of international conflict and that none in
fact existed at any relevant time-or place. However, the 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 is allegedly committed upon
a protected person the power of the International Tribunal to
prosecute arises if the spatial and temporal requirements of Article 1
are met.

51.  The Report of the Secretary-General, (U.N. Doc. S/25704 (3 May
1993)) (the "Report") makes it clear, in paragraph 34, that it was
intended that the rules of international law that were to be applied
should be "beyond any doubt part of customary law", so that problems
of non-adherence of particular States to any international Convention
should not arise. Hence, no doubt, the specific reference to the law
of the Geneva Conventions in Article 2 since, as the Report states in
paragraph 35, that law applicable in armed conflict has beyond doubt
become part of customary law. But there is no ground for treating
Article 2 as in effect importing into the Statute the whole of the
terms of the Conventions, including the reference in common Article 2
of the Geneva Convention to international conflicts. As stated,
Article 2 of the Statute is on its face, self-contained, save in
relation to the definition of protected persons and things. It simply
confers subject matter jurisdiction to prosecute what, if one were
concerned with the Conventions, would indeed be grave breaches of
those Conventions, but which are, in the present context, simple
enactments of the Statute.

52.  When what is in issue is what the Geneva Conventions contemplate
in the case of grave breaches, namely their prosecution before a
national court and not before an international tribunal, it is natural
enough that there should be a requirement of internationality; a
nation might well view with concern, as an unacceptable infringement
of sovereignty, the action of a foreign court in trying an accused for
grave breaches committed in a conflict internal to that nation. Such
considerations do not apply to the International Tribunal, any more
than do the references in the Conventions to High Contracting Parties
and much else in the Conventions; all these are simply inapplicable to
the International Tribunal. They do not apply because the
International Tribunal is not in fact, applying conventional
international law but, rather, customary international law, as the
Secretary-General makes clear in his Report, and is doing so by virtue
of the mandate conferred upon it by the Security Council. In the case
of what are commonly referred to as "grave breaches", this
conventional law has become customary law, though some of it may well
have been conventional law before being written into the predecessors
of the present Geneva Conventions.

53.  It follows that the element of internationality forms no
jurisdictional criterion of the offences created by Article 2 of the
Statute of the International Tribunal. If it did, there are clear
indications in the great volume of material before the Trial Chamber
that the acts alleged in the indictment were in fact committed in the
course of an international armed conflict. However, little of this
material is such that judicial notice can be taken of it and none of
it is in the form of, nor has it been tendered as, evidence. In these
circumstances the Trial Chamber makes no finding regarding the nature
of the armed conflict in question.

54.  As a submission alternative to its principal submission that
there was here an international armed conflict, the Prosecutor
contended that certain agreements entered into were, in any event,
such that they operated, pursuant to common Article 3 of the 1949
Geneva Conventions ("common Article 3"), "to bring into force, by
means of special agreements", those provisions of the Conventions
relating to serious breaches

55.  Those agreements, entered into under the auspices of the
International Committee of the Red Cross on 22 and 23 May and on 1
October 1992, were accompanied by a programme of action agreed upon on
27 August 1992.

56.  That these agreements had the effect contended for by the
Prosecutor was contested by the Defence. In view of the conclusion of
the Trial Chamber that Article 2 of our Statute expressly and directly
confers jurisdiction to prosecute in respect of the commission of the
acts enumerated in that Article, it is also unnecessary to express any
conclusion regarding this alternative submission.

B. Article 3: Violations of the Laws or Customs of War

57.  The Defence contends that the accused may not be tried for
violations of laws or customs of war under Article 3 of the Statute
because that article is based on the Hague Convention (IV) Respecting
the Laws and Customs of War on Land and the regulations thereto of 18
October 1907 ("Hague Convention"), and the 1977 Protocol I, which
apply only to an international conflict, and that none, in fact,
existed at any relevant time or place. The Prosecutor responds by
asserting that the term "laws or customs of war" in Article 3 applies
to both international and internal conflict and that the International
Tribunal may apply the minimum standards of common Article 3 which are
applicable to both international and internal armed conflicts. Since
the Prosecutor seemingly does not seek to import Protocol I into
Article 3 of the Statute, the Trial Chamber does not address that
issue.

58.  Having considered the position of the parties, the Trial Chamber
finds that the character of the conflict, whether international or
internal, does not affect the subject-matter jurisdiction of the
International Tribunal under Article 3 to try persons who are charged
with violations of laws or customs of war.

59. The interpretation of the scope of Article ,2 of the Statute is
applicable to the view of the Trial Chamber of its subject matter
jurisdiction under Article 3. Contrary to the position of the Defence,
nothing in the words of Article: 3 expressly requires the existence of
an international conflict. Indeed, with respect to Article 3, unlike
Article 2, there is no mention of any convention. Article 3 simply
provides that the International Tribunal ';shall have the power to
prosecute persons violating the laws or customs of war". A list of
prohibitory acts are then set forth in the Article. It is clear that
the list is illustrative and not exhaustive, for the list is preceded
with the phrase, "such violations shall include, but not be limited to
. . ."

60. The competence of the International Tribunal extends to serious
violations of international humanitarian law that are a part of
customary law. International humanitarian law includes international
rules designed to solve humanitarian problems arising from
international or non-international armed conflicts. (See Commentary on
the Additional Protocols of 8 June 1977, at p. XXVII (ICRC 1987).)
Even though the acts enumerated in Article 3 are from the Hague
Convention, the term "laws or customs of war' should not be limited to
international conflicts. Laws or customs of war include prohibitions
of acts committed both in international and internal armed conflicts.
Indeed, common Article 3 is clear evidence that customary
international law limits the conduct of hostilities in internal armed
conflicts. However, unlike contracting parties to treaties, the
International Tribunal is not called upon to apply conventional law
but instead is mandated to apply customary international law.
Therefore, the element of internationality forms no jurisdictional
criterion even if the Hague Convention was originally envisaged by the
Contracting Parties to apply to international conflicts.

61. Violations of the laws or customs of war are commonly referred to
as "war crimes". They can be defined as crimes committed by any person
in violation of recognized obligations under rules derived from
conventional or customary law applicable to the parties to the
conflict. (See L.C. Green, The Contemporary Law of Armed Conflict 276
(1993), ("war crimes are violations of the laws and customs of the law
of armed conflict and are punishable whether committed by combatants
or civilians, including the nationals of neutral states"). See also,
C.H. Bassiouni, A Draft International Criminal Code And Draft Statute
For An International Criminal Tribunal 130 (1987) ("[w]ar crimes
consist of conduct (acts or omissions) which is prohibited by the
rules of international law applicable in armed conflict, conventions
to which the parties to the conflict are Parties, and the recognized
principles and rules of international law of armed conflict").)

62.  In Article 6 (b) of the Charter of the International Military
Tribunal at Nuremberg, war crimes are defined as

"[V]iolations of the laws and customs of war. Such violations shall
include, but not be limited to, murder, ill-treatment or deportation
to slave labor or for any other purpose of civilian population of or
in occupied territory, murder or ill-treatment of prisoners of war or
persons on the seas, killing of hostages, plunder of public or private
property, wanton destructions of cities, towns, or villages, or
devastation not justified by military necessity."

63.  Although the Statute of the International Military Tribunal
limited its competence to the international armed conflict of World
War II, historically laws or customs of war have not been limited by
the nature of the conflict they regulate. The Lieber Code, broadly
recognized as the most famous early example of a national manual
outlining the laws of war for the use of armed forces, and one of the
first attempts to codify the laws of land warfare, was drafted to
regulate the conduct of the United States armed forces during the
American Civil War. (The Lieber Code, Instructions for the Government
of Armies of the United States in the Field by Order of the Secretary
of War, General Orders No. 100, Washington, D.C. (24 April 1863),
reprinted in L. Friedman (ed.) 1 A Documentary History 158 (1972).)
This Code, based on what Lieber regarded as the generally accepted law
of his day, was used as the model for other manuals and greatly
inspired later developments of the laws of war. Indeed, the drafters
of the first proposal for a codification of the ' laws or customs of
war on land" in The Hague, relied heavily on the "Declaration of
Brussels of 1874", which in turn, was strongly influenced by the
Lieber Code. (See F. Kalshoven, Constraints on the Waging of War 13
(1987).) It is also an established principle of customary
international law that the laws of war might become applicable to
non-international armed conflicts of a certain intensity through the
doctrine of "recognition of belligerency". (See, for example, 1956
United States Army Field Manual, which stipulated that "the customary
law of war becomes applicable to civil war upon recognition of the
rebels as belligerents", para. 11a.) Further, even in internal
conflict situations where the recognition of belligerency was
explicitly withheld, it has been recognized that some fundamental
rules of the law of war would nevertheless apply, regardless of
non-recognition of belligerency. (See A. Cassese "The Spanish Civil
War and the Development of Customary Law Concerning Internal Armed
Conflict", in Current Problems of International Law 313 (Cassese, ed.
1975).) Additionally, under the International Law Commission's Draft
Code on Crimes Against The Peace and Security of Mankind, the notion
of "exceptionally serious war crimes", is defined to include certain
conduct and no differentiation is made with respect to whether
committed in the course of an international or non-international armed
conflict. Members of the Security Council are also of the opinion that
the term "laws or customs" is not limited to international armed
conflicts. (See Statements of U.S., U.K. and French representatives to
the Security Council following the adoption of resolution 827, U.N.
Doc. S/PV.3217, 15 (May 25, 1993).)

64. The Trial Chamber concludes that Article 3 of the Statute provides
a non-exhaustive list of acts which fit within the rubric of "laws or
customs of war". The offences that it may consider are not limited to
those contained in the Hague Convention and may arise during an armed
conflict regardless of whether it is international or internal.

65. The Prosecutor affirmatively contends that the minimum standards
contained in common Article 3 are incorporated in Article 3 of the
Statute. The Trial Chamber finds that it has subject-matter
jurisdiction under Article 3 because violations of laws or customs of
war are a part of customary international law over which it has
competence regardless of whether the conflict is international or
national. However, the Trial Chamber considers that it is necessary to
respond to the specific assertion by the Prosecutor that laws or
customs of war include the obligations imposed by common Article 3.
The Trial Chamber finds that common Article 3 imposes obligations that
are within the subject-matter jurisdiction of Article 3 of the Statute
because those obligations are a part of customary international law.
Further, the Trial Chamber finds that violations of these prohibitions
can be enforced against individuals. Imposing criminal responsibility
upon individuals for these violations does not violate the principle
of nullum crimen sine lege.

66.  Common Article 3 prohibits the following acts when committed
against persons taking no active part in the hostilities:

  (a) violence to life and person, in particular murder of all kinds,
mutilation, cruel treatment and torture;

  (b) taking of hostages;

  (c) outrages upon personal dignity, in particular humiliating and
degrading treatment;

  (d) the passing of sentences and the carrying out of executions
without previous judgement pronounced by a regularly constituted
court, affording all the judicial guarantees which are recognized as
indispensable by civilized-people.

67.  For the reasons discussed herein, the acts proscribed by common
Article 3 constitute criminal offences under international law. The
fact that common Article 3 is part of customary international law was
definitively decided by the International Court of Justice in the
Nicaragua case (Military and Paramilitary Activities (Nicar. v.
U.S.)), 1986 I.C.J. 4 (Merits Judgement of 27 June 1986) in which the
Court, applying customary international law, determined that the rules
contained in common Article 3 constitute a "minimum yardstick"
applicable in both international and non-international armed
conflicts, thus finding that these prohibitions are part of customary
international law. As early as 1958 the view was already held that
common Article 3:

". . . merely demands respect for certain rules, which were already
recognised as essential in all civilised countries, and embodied in
the municipal law of the states in question, long before the
Convention was signed.... no government can object to observing, in
its dealings with internal enemies, whatever the nature of the
conflict between it and them, a few essential rules which it in fact
observes daily, under its own laws, even when dealing with common
criminals."

(Commentary on the Geneva Conventions of 12 August 1919: [No.] IV
Geneva Convention Relative to the Protection of Civilian Persons in
Time of War 36 (Pictet ed., 1958).)

A more recent commentator notes that ". . . the norms stated in
Article 3(1)(a)-(c) are of such an elementary, ethical character, and
echo so many provisions in other humanitarian and human rights
treaties, that they must be regarded as embodying minimum standards of
-customary law also applicable to non-international armed conflicts."
(Theodor Meron, Human Rights and Humanitarian Norms as Customary Law
35 (1991).) The customary status of common Article 3 is further
supported by statements made by representatives to the Security
Council following the adoption of resolution 827 adopting the Statute
of the International Tribunal. The United States representative
explicitly stated that she considered Article 3 of the Statute to
include common Article 3 of the 1949 Geneva Conventions, and
representatives from the United Kingdom and France made similar
statements. (U.N. Doc. S/PV.3217 (25 May 1993), paras. 11, 15 and 19.)

68.  The fact that acts proscribed by common Article 3 constitute
criminal offences under international law is also evident from the
fact that the acts within common Article 3 are criminal in nature.
They are similar in content to acts prohibited by the grave breaches
provisions, which clearly entail individual criminal liability. In
addition, the type of acts listed in common Article 3 have been found
in the past to result in individual criminal liability. For example,
Article 44 of the Lieber Code supra provided for the prohibition,
criminal responsibility and punishment of persons committing acts
which are of the type that would today fall within common Article 3.
In addition, there have been national trials for individuals charged
with violations similar to common Article 3. (See Jordan Paust, War
Crimes Jurisdiction and Due Process: The Bangladesh Experience 11
Vanderbilt Journal of Transnational Law 1, 25 (1978).)

69.  The customary international law doctrine of recognition of
belligerency allows for the application to internal conflicts of the
laws applicable to international armed conflict, thus ensuring that
even in a non-international conflict individuals can be held
criminally responsible for violations of the laws and customs of war.
Additionally, some national military manuals and laws emphasise the
criminal nature of acts within common Article 3. For example, the
United States Army regards violations of common Article 3 as
encompassed by the notion of war crimes, thus empowering it to
prosecute captured military personnel for war crimes if they were
accused of breaches of common Article 3. The German Military Manual
describes violations of common Article 3 as "grave breaches of
international humanitarian law," implying that violations of common
Article 3 could form the basis for individual criminal responsibility.
(See Theodor Meron, International Criminalization of Internal
Atrocities, 89 Am. J. Int'l. L. 554, 564-65 (1995).) Further, the
criminal nature of the acts within common Article 3 is evident from
the language of common Article 3 itself, which is clearly prohibitory
and addresses fundamental offences such as murder and torture which
are prohibited in all States:

"Therefore, no person who has committed such acts . . . could claim in
good faith that he/she did not understand that the acts were
prohibited. And the principle nullum crimen is designed to protect a
person only from being punished for an act that he or she reasonably
believed to be lawful when committed." (Id. at 566.)

70.  The individual criminal responsibility of the violator need not
be explicitly stated in a convention for its provisions to entail
individual criminal liability. This is evident from the use of the
Fourth Hague Convention and the 1929 Geneva Prisoners of War
Convention as the basis for prosecutions and convictions at Nuremberg,
despite the fact that neither convention contain any reference to
penal prosecution or individual liability for breaches.

71.  A further indication that the acts proscribed by common Article 3
constitute criminal offences under international law is that, assuming
arguendo that there is no clear obligation to punish or extradite
violators of non-grave breach provisions of the Geneva Conventions,
such as common Article 3, all States have the right to punish those
violators. Therefore, individuals can be prosecuted for the violations
of the acts listed and thus prosecution by the International Tribunal
based on primacy does not violate the ex post facto prohibition. In
addition, in the Nicaragua case, the Court recognised the
applicability of common Article 1 of the Geneva Conventions to
non-international armed conflicts. The requirement in common Article 1
that all Contracting Parties must respect and ensure respect for the
Conventions may entail resort to penal measures.

72.  In his Report, the Secretary-General states that "the application
of the principle nullum crimen sine lege requires that the
International Tribunal should apply rules of international
humanitarian law which are beyond any doubt part of customary law".
(UN Doc. S/25704, para. 34.) Article 15(1) of the ICCPR contains the
prohibition against nullum crimen sine lege, and provides in relevant
part that "[n]o one shall be held guilty of any criminal offence on
account of an act or omission which did not constitute a criminal
offence, under national or international law, at the time when it was
committed". As is demonstrated from the above, common Article 3 is
beyond doubt part of customary international law, therefore the
principle of nullum crimen sine lege is not violated by incorporating
the prohibitory norms of common Article 3 in Article 3 of the Statute
of the International Tribunal.

73.  Additional support for the finding that there is no violation of
the principle of nullum crimen sine lege is that by incorporating the
prohibitory norms of common Article 3 into its national law, the
former Yugoslavia has criminalized these offences. (See Art. 125 of
the Criminal Code of the former Yugoslavia, which provides that the
prohibition of war crimes against the civilian population applies to
situations of "war, armed conflict or occupation," irrespective of the
nature of the conflict, thus implying that situations of
non-international armed conflict could be covered.)

74.  For these reasons, the Trial Chamber finds that the character of
the conflict, whether international or internal, does not affect the-
subject-matter jurisdiction of the Tribunal under Article 3. The term
"laws or customs of war", applies to international and internal armed
conflicts. The minimum standards of common Article 3 apply to the
conflict in the former Yugoslavia and the accused's prosecution for
those offences does not violate the principle of nullum crimen sine
lege.

C. Article 5: Crimes Against Humanity

75.  Crimes against humanity have been described by the
Secretary-General in his Report (at paragraph 48) as those inhumane
acts of a very serious nature committed as part of a widespread or
systematic attack against any civilian population on national,
political, ethnic, racial or religious grounds. The Statute then
defines the jurisdiction of the International Tribunal over crimes
against humanity in Article S of the Statute as follows:

"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:

  (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.

76.  There is no question but that crimes against humanity form part
of customary international law. They found expression in Article 6(c)
of the Nuremberg Charter of 8 August 1945, Article II(l)(c) of Law No.
10 of the Control Council for Germany of 20 December 1945 and Article
5(c) of the Tokyo Charter of 26 April 1946, three major documents
promulgated in the aftermath of World War II.

77.  The Defence claims that "the Tribunal only has jurisdiction under
Article 5 of the Statute if it involves crimes that have been
committed in the execution of or in connection with an international
armed conflict." It purports to find authority for this proposition
requiring the existence of an armed conflict of an international
nature in the Nuremberg Charter which, in its definition of crimes
against humanity, spoke of inhumane acts committed "in execution of or
in connection with any crime within the jurisdiction of the Tribunal .
. ." and in the affirmation given to the principles of international
law recognised by the Charter of the Nuremberg Tribunal and Judgement
of the Tribunal in General Assembly resolution 95(1) of 1948. The
Defence further contends that the broadening of the scope of Article 5
to crimes when committed in armed conflicts of an internal character
offends the nullum crimen principle.

78.  The Trial Chamber does not agree. The nexus in the Nuremberg
Charter between crimes against humanity and the other two categories,
crimes against peace and war crimes, was peculiar to the context of
the Nuremberg Tribunal established specifically "for the just and
prompt trial and punishment of the major war criminals of the European
Axis countries." (Nuremburg Charter, Article l). As some of the crimes
perpetrated by Nazi Germany were of such a heinous nature as to shock
the conscience of mankind, it was decided to include crimes against
humanity in order to enable the International Military Tribunal to try
the major war criminals for the barbarous acts committed against
German Jews, amongst others, who, as German nationals, were outside
the protection of the laws of warfare which only prohibited violations
involving the adversary or enemy populations. (See Antonio Cassese,
International Law in a Divided World para. 169 (1986).)

79.  That no nexus is required in customary international law between
crimes against humanity and crimes against peace or war crimes is
strongly evidenced by subsequent case law. The military tribunal
established under Control Council Law No. 10 stated in the
Einsatzgruppen case that:

"Crimes against humanity are acts committed in the course of wholesale
and systematic violation of life and liberty . . . The International
Military Tribunal, operating under the London Charter, declared that
the Charter's provisions limited the Tribunal to consider only those
crimes against humanity which were committed in the execution of or in
connection with crimes against peace and war crimes. The Allied
Control Council, in its Law No. 10, removed this limitation so that
the present Tribunal has jurisdiction to try all crimes against
humanity as long known and understood under the-general principles of
criminal law." (4 Trials of War Criminals 499).

80.  Further, the Special Rapporteur of the International Law
Commission had this to say:

"First linked to a state of belligerency . . . the concept of crimes
against humanity gradually came to be viewed as autonomous and is
today quite separate from that of war crimes . . . Crimes against
humanity may be committed in time of war or in time of peace; war
crimes can only be committed in time of war."

(Seventh Report on the Draft Code of Crimes Against the Peace and
Security of Mankind, [1989] 2 Yearbook of ILC, U.N. Doc., A/N/CN.
4/SER. A/1986/Add. 1).

81.  Finally, this view that crimes against humanity are autonomous is
confirmed by the opus classicus on international law, Oppenheim's
International Law, where special reference is made to the fact that
crimes against humanity "are now generally regarded as a
self-contained category, without the need for any formal link with war
crimes . . ." (R. Jennings and A. Watts, I Oppenheim's International
Law 966 (1992)).

82.  Even were it arguable that a nexus is required between crimes
against humanity and war crimes, the element of internationality
certainly forms no jurisdictional criterion because, as has been shown
above, war crimes are prohibited under customary international law in
armed conflicts both of an international and internal nature.

83.  In conclusion, the Trial Chamber emphasises that the definition
of Article 5 is in fact more restrictive than the general definition
of crimes against humanity recognised by customary international law.
The inclusion of the nexus with armed conflict in the article imposes
a limitation on the jurisdiction of the International Tribunal and
certainly can in no way offend the nullum crimen principle so as to
bar the International Tribunal from trying the crimes enumerated
therein. Because the language of Article 5 is clear, the crimes
against humanity to be tried in the International Tribunal must have a
nexus with an armed conflict, be it international or internal.

DISPOSITION                                 The foregoing deals with
the several objections to jurisdiction proper raised by the Defence as
well as with the other objections not properly relating to
jurisdiction but which instead put in issue the lawful creation and
competence of the International Tribunal.

   For the foregoing reasons, THE TRIAL CHAMBER, being seized of the
Motion filed bY the Defence, and

PURSUANT TO RULE 72

HEREBY DISMISSES the motion insofar as it relates to primacy
jurisdiction and subject-matter jurisdiction under Articles 2, 3 and 5
and otherwise decides it to be incompetent insofar as it challenges
the establishment of the International Tribunal

HEREBY DENIES the relief sought by the Defence in its Motion on the
Jurisdiction of the Tribunal.

 /s/ Gabrielle Kirk McDonald, Presiding Judge

 Dated this tenth day of August 1995

At The Hague

The Netherlands

[ Seal of the Tribunal ]