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On The Legality Of The Establishment Of ICTY From The Perspective Of Tadic Case, And The Principle Of Legality In International Criminal Law

Posted on:2007-05-01Degree:MasterType:Thesis
Country:ChinaCandidate:M MiaoFull Text:PDF
GTID:2166360182480219Subject:Criminal Law
Abstract/Summary:PDF Full Text Request
The International Criminal Tribunal for the former Yugoslavia, i.e. ICTY,established by Security Council of the United Nations, applies the principle and theoryof International Criminal Law in the framework of the United Nations for the first time.Since its establishment, ICTY tried a number of significant cases, enriching thejurisprudence and practice in the domain of International Criminal Law andInternational Humanitarian Law enormously. This essay focuses on the first case beforeICTY——the Tadi? case, and analyzed the legality of the establishment of ICTY itselfin the perspective of the Principle of Legality in International Criminal Law. There arethere major sections in this essay: the analysis of the principle of legality, the briefintroduction of the case fact about Tadi? and major legal issues about the legality of theestablishment of ICTY.Serious atrocities have taken place in the territory of the Former Yugoslavia duringthe armed conflict, such as ethic cleansing, ethic massacres which shocked theconsciences of the international community. Given to the emergency circumstanceoccurred in the Former Yugoslavia, which threatened the international peace andsecurity, the Security Council of the United Nations decided to establish ICTYaccording to Chapter VII of the UN Charter to try those might be held personallyresponsible for the greave violations of international humanitarian law inside theterritory of the Former Yugoslavia since 1991 on May 25th, 1993. Since itsestablishment, ICTY faced challenges on the legality of the establishment of itselfrepeatedly. This is partly due to its unique way of establishment: The establishment ofICTY is the first time that the Security Council establishes a international judicial bodyby its resolution instead of treaties agreed on by relevant member states. Based onArticle 29 of UN Charter, ICTY is a subsidiary organ under the Security Council.Besides the legality of the establishment of the ICTY, there is another legality: thePrinciple of Legality. There are many aspects relating to the Principle of Legality, suchas specific rules of nullum crimen sine lege praevia, nullum crimen sine poena legali, expost facto, non-retroactive, and the principle of specifity. However, the author deems theprinciple that a tribunal should be established by law is also an important part of thePrinciple of Legality in terms of International Criminal Law. The implying meaning ofthe concept establish by law is that, a tribunal has to be established by law, and only atribunal established by law can offer the defendant a fair and independent trial.Tribunals established through no due process bear no legitimate basis, and wouldjeopardize the rights of the accused. The key point of the principle, in the eye of theauthor, should be the principle of establish by law in this case. International Covenanton Civil and Political Rights(ICCPR)adopted on December 16th 1966 formed the mostimportant international legal framework to protect the basic human rights on theshoulder of The Universal Declaration of Human Rights. Article 14 of the ICCPRdeclares that all persons shall be equal before the courts and tribunals. In thedetermination of any criminal charge against him, or of his rights and obligations in asuit at law, everyone shall be entitled to a fair and public hearing by a competent,independent and impartial tribunal established by law. Clearly, as a policy-decidingauthority, Security Council of the United Nations should satisfy the principle of legalitywhen talking about its establishment of ICTY. The theoretical and practical value ofTadi? case lies in the clear statement of ICTY's lawful establishment, which is thecornerstone in the development of the international humanitarian law and internationalcriminal law, sweeping the floor for the subsequent cases such as Milosevi?.One of the primary questions in this case: Is the establishment of ICTY by theSecurity Council legitimate? And whether does ICTY has the authority to decide it ownlegality? The aforementioned two key issues depend on the following further analysis:Firstly, Is UN Charter the legal foundation of Security Council's establishing ICTY?The subtitle of Chapter VII of UN Charter is Action with Respect to Threats to thePeace, Breaches of the Peace, and Acts of Aggression. Article 41 of the Charterstipulates that The Security Council may decide what measures not involving the use ofarmed force are to be employed to give effect to its decisions, and it may call upon theMembers of the United Nations to apply such measures. These may include complete orpartial interruption of economic relations and of rail, sea, air, postal, telegraphic, radio,and other means of communication, and the severance of diplomatic relations. SecurityCouncil of the UN is the core of the international collaborative security system and thecore organ to solve international disputes peacefully. An organ with such an authorityshould be deemed eligible to establish its subsidiary organs under the specificregulations of the UN Charter. Although there is no specific wording in Article 41 of theCharter affirming that it is recognized to establish an organ with a special character suchas a criminal tribunal, the following conclusion could be drawn based on the logicalanalysis of the wording of the Charter, on the jurisprudence and the legislative spirit ofthe Charter, or on the emergency to respond to the circumstances deteriorating quicklyin the territory of Former Yugoslavia, that the establishment of ICTY is included in theimplied meaning of Article 41. The author come with the conclusion in the third part ofthis essay that the implied provision under Chapter VII of UN Charter is the legal basisthat justify the establish of ICTY, a measure the Security Council could take notinvolving the use of armed force, a measure to set up a subsidiary judicial organ.Secondly, as a subsidiary organ attached to the Security Council, does ICTY has theauthority to decide on the legality of its own formulation, does it has the competence todecide on the legality of the resolution adopted by its creator, the Security Council? Arunning-well tribunal has full competence to review the legality of its own jurisdiction,and this is named as the Kompetenz-Kompetenz or compétence de la compétence, whichis the inherent or incidental authority of any judicial organ. The decisions of theappellant chamber of ICTY relating to this point is proved to be the cornerstone of thedevelopment of the international legal rules, which concludes that the international lawdecides that every tribunal is a self-contained system, in which theKompetenz-Kompetenz is by all means within the scope of the judicial competence andis one of its judicial characteristics, whether or not the constitutional document stipulateit expressly. The appellant chamber further stipulated that the constitutional documentof the tribunal itself can limit the sphere of its competence, but can't jeopardize itsjudicial characteristic. Thus the ICTY has the authority to decide on the legality andlegitimacy of its own establishment.During the jurisprudence analysis in the body of this essay on the legality of theestablishment of ICTY, the author applied the principle of legality in the traditionalsense such as nullum crimen sine lege praevia, nullum crimen sine poena legali, ex postfacto, non-retroactive, and the principle of specifity , what's more, the author interpretsthe new content of the principle of a tribunal should be established by law in theenvironment of international criminal law. Probably in the sense of national law, thisprinciple falls into the scope of criminal procedure rules, however, in the internationalcriminal law area, we consider this principle related to the concept of human rightsclosely. The author concludes hereinafter that in the perspective of internationalcriminal law, the principle of legality is not constrained to the traditional contents, andshould included the principle that a tribunal must be established by law. ICTY wasestablished by law in every sense, which is the conclusion of the decisions of the Tadi?Case, thereby enriched and developed the content of the Principle of Legality.
Keywords/Search Tags:ICTY, the principle of legality, the legality of the establishment of the ICTY, Security Council of the United Nations, the Charter of the UN
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