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Yugoslavian War Crimes and the Search for a New Humanitarian Order: the Case of Dusko Tadic

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Yugoslavian War Crimes and the Search for a New Humanitarian Order: the Case of Dusko Tadic Journal of Civil Rights and Economic Development Volume 12 Issue 2 Volume 12, Spring 1997, Issue 2 Article 2 Yugoslavian War Crimes and the Search for a New Humanitarian Order: The Case of Dusko Tadic Mark R. von Sternberg Follow this and additional works at: https://scholarship.law.stjohns.edu/jcred This Article is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in Journal of Civil Rights and Economic Development by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. YUGOSLAVIAN WAR CRIMES AND THE SEARCH FOR A NEW HUMANITARIAN ORDER: THE CASE OF DUSKO TADIC MARK R. VON STERNBERG* INTRODUCTION On October 2, 1995, the Appeals Chamber of the Yugoslavian War Crimes Tribunal' issued a decision of considerable moment for the future growth of international law. In Decision on the De- fence Motion for InterlocutoryAppeal on Jurisdictionin the Matter of Prosecutor v. Dusko Tadic,2 the Appeals Chamber was con- fronted with a series of arguments designed to divest it of subject matter jurisdiction over the war crimes process. Dusko Tadic, cur- rently one of the leading defendants in the proceedings, contended that: (i) The United Nations Security Council was without jurisdic- tion to establish a war crimes tribunal as an aspect of its en- forcement powers, since Chapter VII of the U.N. Charter (wherein the Security Council's jurisdictional competence is * B.A., 1969, Columbia College; J.D., 1973, Vanderbilt University School of Law; LL.M, 1984 New York University Law School. Mr. von Sternberg is the Supervising Attorney for the Catholic Legal Immigration Network, Inc. for the Northeast Region. 1 See S.C. Res. 808, U.N. SCOR, 49th Sess., 3175th mtg. at 28, U.N. Doc. 5/INF/49 (1994). By resolution dated February 22, 1993, the U.N. Security Council decided to estab- lish an international war crimes tribunal with the objective of prosecuting and, where ap- propriate, sanctioning certain violations of international humanitarian law deemed to have taken place in the former Yugoslavia since 1991. Id.; see also Security Council Resolution on Establishingan International Tribunal for the Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territorry of the Former Yugoslavia, S.C. Res. 827, U.N. SCOR, 48 h Sess. Res. & Dec., at 29, U.N. Doc. S1 INF/49, 3217' mtg. (May 25, 1993), available in 32 I.L.M. 1203, 1203-1204 (1993). The appeal taken by Dusko Tadic was from a judgement of the Trial Chamber of the Yugoslav- ian War Crimes Tribunal. Id.; Secretary-General'sReport on Aspects of Establishingan InternationalTribunal for the Prosecution of Persons Responsible for Serious Violations of InternationalHumanitarian Law Committed in the Territorry of the Former Yugoslavia, U.N. Doc. S/25704 (May 3, 1993), reprinted in 32 I.L.M. 1159, 1163-84 (1993). 2 Case No. IT-94-1-AR72 (International Tribunal for the Prosecution of Persons Respon- sible for Serious Violations of International Humanitarian Law Committed on the Terri- tory of the Former Yugoslavia 1995), reprinted in 35 I.L.M. 32 (1996) [hereinafter "Tadic Appeal"]. 352 ST. JOHN'S JOURNAL OF LEGAL COMMENTARY [Vol. 12:351 detailed) does not specifically confer the authority to set up a judicial or adjudicative body. (ii) In all events, although the Tribunal may have the author- ity to criminally administer international humanitarian law in the case of an international conflict, no such jurisdiction existed4 where the misconduct occurred in a civil or internal war. The Appeals Chamber ruled against appellant Tadic on both of these issues. Its opinion upheld the authority of the Security Council to establish a judicial body under Chapter V115 and to criminally enforce humanitarian law in the area of internal con- flicts;6 both of which are decisions of first impression in the field of public international law. This article purports to explore the sig- nificance of the holdings in the context of two broad policy consid- erations. First, the relationship between enforcing international humanitarian law and the Security Council's goal of pursuing col- lective peace and security is considered. This paper then analyzes the scope of customary international humanitarian law as deter- mined by the Appeals Chamber. 3 Id. at pars. 11-12, reprinted in 35 I.L.M. 32, 39. On its original Trial Chamber motion, appellant had asserted a three-pronged attack in challenging the Tribunal's jurisdiction, alleging the "(a) illegal foundation of the International Tribunal; (b) wrongful primacy of the International Tribunal over national courts; [and] (c) lack ofjurisdiction ratione mater- iae." Id. at par. 2, reprinted in 35 I.L.M. 32, 32 (quoting appellant's Defence Motion on Jurisdictionin the Trial Chamber of the InternationalCourt, 10 Aug. 1995 (Case No. IT-94- 1-T)). 4 See Tadic Appeal, supra note 2, at par. 35, reprinted in 32 I.L.M. at 44. 5 Id. at pars. 13-24, available in 32 I.L.M. at 39, 40. The Appeals Chamber recognized the "[power of the Security Council to invoke Chapter VIII" in promulgating the Tribunal and imbuing it with the requisite authority and jurisdiction in keeping with international law norms: Article 39 opens Chapter VII of the Charter of the United Nations and determines the conditions of application of this Chapter. It provides that "[the Security Council shall determine the existence of any threat to the peace, breach of the peace, or act of aggres- sion and shall make recommendations, or decide what measures shall be taken in ac- cordance with articles 41 and 42, to maintain or restore international peace and security." Id. at par. 35, reprinted in 32 I.L.M. at 42 (quoting U.N. CHARTER, art 39). The Appeals Chamber concluded "that the... Tribunal ha[d] been established in accordance with the appropriate procedures under the United Nations Charter and provide[d] all the necessary safeguards of a fair trial. [Hence, as it was] . thus 'established by law' . [t]he first ground of appeal: unlawful establishment of the International Tribunal, [was] . accord- ingly dismissed." Id. at par. 47, reprinted in 32 I.L.M. at 48. 6 See Tadic Appeal, supra note 2, at pars. 35-71, reprinted in 32 I.L.M. at 44-45; see also Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 12 Aug. 1949, art. 5, 75 U.N.T.S. 970; Convention Relative to the Treatment of Prisoners of War, 12 Aug. 1949, art. 5, 75 U.N.T.S. 135; Geneva Conven- tion Relative to the Protection of Civilian Persons in Time of War, 12 Aug. 1949, art. 6, 75 U.N.T.S. 287. 1997] DUSKO TADIC These policy considerations and jurisdictional issues are ex- amined, taking into consideration the recent jurisprudential shift away from regulating the rights of sovereign states inter sese, to a corresponding emphasis on protecting human rights of individuals within the international community. With respect to the mainte- nance of world peace and security, there has been a decline in the importance of the law governing aggression (the jus ad bellum) and a corresponding emphasis on protecting human rights in armed conflict (the jus in bello).7 The new analysis symbolizes a jurisprudential shift away from regulating the rights of sovereign states inter sese, to a corresponding emphasis on protecting the human rights of individuals within the international community.8 This new jurisprudence does not approach the problem of collec- tive security from the conventional dualistic perception of interna- tional law, under which international norms reach individuals only through the medium of the State's legal machinery. Rather, the problem is addressed by means of an essentially monist view in which international jurisprudence has both primacy and direct control over human rights violations.9 Successfully addressing col- lective security through a direct application of humanitarian norms reflect a holistic reading of international law, emphasizing the rights of individuals and groups (rather than those of States) within a modern system. 10 It is submitted that the increasing at- 7 See Convention Relative to the Protection of Civilian Persons in Time of War, Aug. 12 1949, 6 U.S.T. 3516, 75 U.N.T.S. 287 (the 1949 Geneva Convention). The issue of "propor- tionality" as it relates to balancing concepts ofjus in bello and jus ad bellum is addressed by Protocol I. Id. See generally MYREs M. McDoUGAL & FLORENTINO P. FELICIANO, LAW AND MINIMUYM WORLD PUBLIC ORDER 241-44 (1961); JAMES T. JOHNSON, JUST WAR TRADITION AND THE RESTRAINT OF WAR 203, 204 (1981). 8 The law of human rights and humanitarian law evolved separately. See generally DIE- TRICH SCHINDLER, THE INTERNATIONAL COMMITTEE OF THE RED CROSS AND HUMAN RIGHTS 3- 7 (International Committee of the Red Cross 1979). It is only in the course of time, and particularly after the Second World War, that these two bodies of jurisprudence have con- verged. Id. at 7-9. The United Nations now views human rights and international humani- tarian law as having a formal nexus. Id. See generally Respect for Human Rights in Armed Conflict, Report of the Secretary General, U.N. Doc. A/7120 (1969) [hereinafter Respect for Human Rights in Armed Conflict]. This Report was prepared pursuant to G.A. Res. 2444 (XXIII), U.N. GAOR, 23d Sess., at 50, U.N. Doc. A/7218 (1969). 9 On the differences between the dualistic and monist approaches to international law, see IAN BROWNLIE, PRINCIPLES OF PUBLIC INTERNATIONAL LAw 32-35 (4th ed.
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