Use of Force in International Law (JUFN27)

Autumn semester, 2017

Seminar No. 7

Tadić, Decision of the Defence Motion for Interlocutory Appeal on Jurisdiction, Seminar Materials, p. 251 ff.
UN Security CouncilResolution 827, see
UN Security Council Resolutions 713, 757 and 787, Seminar Materials, p. 265 ff.

Group 4. The Tadić case

In this case, the defence argued that the International Criminal Tribunal for the Former Yugoslavia (ICTY) does not have jurisdiction to try Duško Tadić, because the Tribunal was not lawfully established. This issue, obviously, is of crucial importance to the future working of the Tribunal. The prosecutor, on the other hand, wishes to prevent a consideration of the issue altogether. According to what the prosecutor maintains,the Tribunal lacks all authority to review the lawfulness of the establishment of the ICTY. In support of this proposition, the prosecutor brings three arguments before the Tribunal. Let’s take a closer look at these three arguments.

(1) The prosecutor’s first argument is that ICTY is not competent to settle issues concerning its own jurisdiction. Could you please explain this argument more fully! How is the argument refuted by the Appeals Chamber?

(2) The prosecutor’s second argument is that the ICTY lacks the mandate to review a decision adopted by the UN Security Council. (The ICTY was established by the Security Council in adopting Resolution827.) I quote: ”[The] Tribunal is not a constitutional court set up to scrutinise the actions of organs of the United Nations” (§ 20). How is this proposition received by the Appeals Chamber? What is the relevance for the Appeals Chamber of the concept of “incidental jurisdiction”? How has the International Court of Justice (the ICJ) dealt with similar issues? (Compare, for example, Lockerbie, Provisional Measures, especially the diss. op. of Judge Weeramantry.)

(3) The prosecutor’s third argument is that the legality of the establishment of the ICTY estabishment is a political question and as such is non-justiciable. Could you please explain this argument more fully! How is this argument received by the Appeals Chamber?

Group 1. The Tadić case (cont’d.)

The defence in Tadićhas challenged the lawfulness of the establishment of International Criminal Tribunal for the Former Yugoslavia (ICTY). This proposition gives rise to several interesting questions of international law, involving primarily the UN Security Council and its powers.

(1) The ICTY was established by the adoption of Security Council Resolution827. The text of the resolution does not state explicitly the precise provision of the UN Charter that serves as the legal basis for the adoption of the resolution. According to the Appeals Chamber, the legal basis for the adoption of Resolution 827 is primarily to be found in Article41 of the Charter. This begs the question why the legal basis is to be sought in Article41 precisely, and not in Articles39, 40 or 42. What is the motivating force of the Appeals Chamber in preferring Article? What is its reasoning?

(2) In order for the Security Council to be able to make a decision on the employment of non-military measures, based on Article41 of the UN Charter, the Council must first consider Article 39. The situation or state-of-affairs that the Security Council aims to redress will have to be classified as either a threat or a breach of international peace. What precise threat or breach of international peace does the Security Council have in mind when adopting Resolution 827? Would it be possible to argue differently, but still reach the same conclusion – namely that international peace and security require the establishment of an international criminal tribunal”?

(3) Much of the discussion in Tadić case centres on the importance of UN Charter Article41 and the expression “measures not involving the use of armed force”. As clearly appears from the provision, “measures not involving the use of armed force” encompasses other types of measures than only those explicitly mentioned in Article41. The difficult question is how far the meaning of this expression can be extended. Now, there exists in the law of treaties a rule of interpretation that is applicable to treaty provisions constructed, as in Article 41 of the UN Charter, using a general expression (in this case, “measures not involving the use of armed force”) followed by an example (here, “These may include ...”). This rule is often referred to as the principle of ejusdem generis. According to the principle of ejusdem generis, the meaning of the generally referring expression “measures not involving the use of armed force” shall be interpreted to refer exclusively to measures of the samegeneric kind as those given as examples. The defence in Tadić builds on the existence of this rule. (See, in particular, § 35.) Thus, as the argument of the defence goes, there are several important differences between,on the one hand, the non-military measure to be taken based on Resolution827 – the establishment of ICTY – and, on the other hand, the kindof measures exemplified in Article41. Which are those differences? Can you think of any additional differences?

(4) Another rule of interpretation that would seem applicable to the interpretation of Article 41 is the rule that allows the understanding of a treaty a fortiori: If a treaty permits a particular action – for example a decision ordering certain types of non-military measures – and that action is less tolerable for the parties than another particular action, then the treaty shall be understood so as to permit this latter action, too.The Appeals Chamber briefly addresses the issue of the application of this rule relative to Article 41. (See, in particular, § 36.) Could you please explain the Court’s reasoning in this regard? Some would say that there may be a problem with the Appeals Chamber line of reasoning. What could that problem possibly be?

(5) In formal terms, ICTY is a subsidiary organ of the UN Security Council. The question arises whether the Security Council can establish a subsidiary organ with judicial functions, and with jurisdiction to hand down decisions that are binding under international law, when such functions cannot be carried out by the Security Council itself. As the defence argues, this question would have to be answered in the negative. The Appeals Chamber sees things differently. Could you please explain more fully the Court’s reasoning in this regard!Could you please also provide a brief explanation of what the Appeals Chamber’s reasoning possibly tells us about the meaning of UN Charter Articles 29 and 7§ 2, generally.

(6) Why is it crucial to determine in the Tadić case whether or not the establishment of ICTY comes within the scope of application of UN Charter Article 41? Why cannot the Appeals Chamber be content with the conclusion that ICTY is a subsidiary organ of the Security Council established according to either Article29 or Article7 § 2?

Groups 2 and 3. Naval interdiction – UN Security Council Resolutions 713, 757 and 787. (Groups decide themselves how to distribute tasks and present results.)

(1) On 25 September 1991, the UN Security Council adopted Resolution 713. Operative paragraph 6 of the resolutionprovides: “all States shall … immediately implement a a general and complete embargo on all deliveries of weapons and military equipment to Yugoslavia until the Council decides otherwise”. How would you describe the legal consequencesof this decision for: (a) any Member State of the UNacting pursuant to the resolution and (b) Yugoslavia? Does it make any difference for your answer to this question that Resolution713 has been adopted at the request of (among others) the Yugoslavian Government?

(2)On 30 May 1992, the UN Security Council adopted Resolution 757. For UN Member States, Resolution 787 extends the previous weapons embargo: “all States shall prevent … [t]he sale or supply by their nationals or from their territories or using their flag vessels or aircraft of any commodities or products, whether or not originating in their territories … to any person or body in the Federal Republic of Yugoslavia (Serbia and Montenegro) or to any person or body for the purposes of any business carried on or operated from the Federal Republic of Yugoslavia (Serbia and Montenegro), and any activities by their nationals or in their territories which promote such sale or supply of such commodities or products” (op. para. 4). Obviously, for a Member State such as Italy, for example, the decision implies that Italy has now an obligation to prevent Italian-flagged ships from delivering goods destined to the Federal Republic of Yugoslavia (FRY). What could possibly be the legal basis for taking a decision such as this? What concrete measures could be taken by an Italian naval vessel to stop an Italian-flagged ship, suspected of carrying cargo bound for FRY, (a) if we assume that both ships are located in international waters, (b) if we assume that both ships are located in Yugoslavian territorial waters?

(3)Resolution 787 is adopted less than six months later – on 16 November 1992. This resolution further extends the embargo. Note, for example, operative paragraph 9: “in order to ensure that commodities and products transshipped through the Federal republic of Yugoslavia (Serbia and Montenegro), [the Security Council decides] to prohibit the transshipment of crude oil, petroleum products, coal, energy-related equipment, iron, steel, other metals, chemicals, rubber, tyres, vehicles, aircraft and motors of all types unless such transshipment is specifically authorized on a case-by-case basis”. Operative paragraph 12 should also be particularly noted: “Acting under Chapters VII and VIII of the Charter of the United Nations, [the Security Council] calls upon States … to use such measures commensurate with the specific circumstances as may be necessary under the authority of the Security Council to halt all inward and outward maritime shipping in order to inspect and verify their cargoes and destinations and to ensure the strict implementation of the provisions of resolutions 713 (1991) and 757 (1992)”. What concrete measures could be taken by an Italian naval vessel to stop any ship, suspected of carrying cargo bound for FRY, (a) if we assume that both ships are located in international waters, (b) if we assume that both ships are located in Yugoslavian territorial waters?