in re. compromise

8/3/2019 In Re. Compromise

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No. 17

Before:Judge Cassese, PresidingJudge LiJudge DeschnesJudge Abi-Saab Judge Sidhwa

Registrar:

Mrs. Dorothee de Sampayo Garrido-Nijgh

Decision of:2 octobre 1995

PROSECUTOR

v.

DUSKO TADIC a/k/a "DULE"

_______________________________

DECISION ON THE DEFENCE MOTION FOR

INTERLOCUTORY APPEAL ON JURISDICTION

_______________________________

The Office of the Prosecutor:

Mr. Richard Goldstone, ProsecutorMr. Grant Niemann


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Mr. Alan TiegerMr. Michael Keegan

Ms. Brenda Hollis

Counsel for the Accused:

Mr. Michail WladimiroffMr. Alphons OrieMr. Milan Vujin

Mr. Krstan Simic

I. INTRODUCTION

A. The Judgement Under Appeal

1. The Appeals Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of Internation

Humanitarian Law Committed in the Territory of Former Yugoslavia since 1991 (hereinafter "International Tribunal") is seized of an alodged by Appellant the Defence against a judgement rendered by the Trial Chamber II on 10 August 1995. By that judgement, Appel

motion challenging the jurisdiction of the International Tribunal was denied.

2. Before the Trial Chamber, Appellant had launched a three-pronged attack:

a) illegal foundation of the International Tribunal;

b) wrongful primacy of the International Tribunal over national courts;c) lack of jurisdiction ratione materiae.

The judgement under appeal denied the relief sought by Appellant; in its essential provisions, it reads as follows:

"THE TRIAL CHAMBER [. . . ]HEREBY DISMISSES the motion insofar as it relates to primacy jurisdiction and subject-matt

jurisdiction under Articles 2, 3 and 5 and otherwise decides it to be incompetent insofar as it challenges the establishment of the

International Tribunal


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

Jurisdiction in the Trial Chamber of the International Tribunal, 10 August 1995 (Case No. IT-94-1-T), at 33 (hereinafterDecisio

Trial).)

Appellant now alleges error of law on the part of the Trial Chamber.

3. As can readily be seen from the operative part of the judgement, the Trial Chamber took a different approach to the first ground of c

on which it refused to rule, from the route it followed with respect to the last two grounds, which it dismissed. This distinction ought to

observed and will be referred to below.

From the development of the proceedings, however, it now appears that the question of jurisdiction has acquired, before this Chamberdimension:

a) the jurisdiction of the Appeals Chamber to hear this appeal;

b) the jurisdiction of the International Tribunal to hear this case on the merits.

Before anything more is said on the merits, consideration must be given to the preliminary question: whether the Appeals Chamber is

with the jurisdiction to hear this appeal at all.

B. Jurisdiction Of The Appeals Chamber

4. Article 25 of the Statute of the International Tribunal (Statute of the International Tribunal (originally published as annex to the RepSecretary-General pursuant to paragraph 2 of Security Council resolution 808 (1993) (U.N. Doc. S/25704) and adopted pursuant to S

Council resolution 827 (25 May 1993) (hereinafterStatute of the International Tribunal)) adopted by the United Nations Security Cou

up the possibility of appellate proceedings within the International Tribunal. This provision stands in conformity with the Internationalon Civil and Political Rights which insists upon a right of appeal (International Covenant on Civil and Political Rights, 19 December 1

14, para. 5, G.A. Res. 2200 (XXI), 21 U.N. GAOR, Supp. (No. 16) 52, U.N. Doc. A/6316 (1966) (hereinafterICCPR)).

As the Prosecutor of the International Tribunal has acknowledged at the hearing of 7 and 8 September 1995, the Statute is general in n

the Security Council surely expected that it would be supplemented, where advisable, by the rules which the Judges were mandated to

especially for "Trials and Appeals" (Art.15). The Judges did indeed adopt such rules: Part Seven of the Rules of Procedure and Eviden


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of Procedure and Evidence, 107-08 (adopted on 11 February 1994 pursuant to Article 15 of the Statute of the International Tribunal, a

(IT/32/Rev. 5))(hereinafterRules of Procedure)).

5. However, Rule 73 had already provided for "Preliminary Motions by Accused", including five headings. The first one is: "objection

lack of jurisdiction." Rule 72 (B) then provides:

"The Trial Chamber shall dispose of preliminary motions in limine litis and without interlocutory appeal, save in the case of dis

objection based on lack of jurisdiction." (Rules of Procedure, Rule 72 (B).)

This is easily understandable and the Prosecutor put it clearly in his argument:

"I would submit, firstly, that clearly within the four corners of the Statute the Judges must be free to comment, to supplement, to

not inconsistent and, to the extent I mentioned yesterday, it would also entitle the Judges to question the Statute and to assure th

that they can do justice in the international context operating under the Statute. There is no question about that.

Rule 72 goes no further, in my submission, than providing a useful vehicle for achieving - really it is a provision which achieve

because but for it, one could go through, as Mr. Orie mentioned in a different context, admittedly, yesterday, one could have theunfortunate position of having months of trial, of the Tribunal hearing witnesses only to find out at the appeal stage that, in fact

should not have been a trial at all because of some lack of jurisdiction for whatever reason.

So it is really a rule of fairness for both sides in a way, but particularly in favour of the accused in order that somebody should nthe terrible inconvenience of having to sit through a trial which should not take place. So, it is really like many of the rules that

Honours and your colleagues made with regard to rules of evidence and procedure. It is to an extent supplementing the Statute,

what was intended when the Security Council gave to the Judges the power to make rules. They did it knowing that there were sStatute that would need to be filled by having rules of procedure and evidence.

[. . .]


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8. Appellant has submitted two successive Briefs in appeal. The second Brief was late but, in the absence of any objection by the Pros

Appeals Chamber granted the extension of time requested by Appellant under Rule 116.

The second Brief tends essentially to bolster the arguments developed by Appellant in his original Brief. They are offered under the foheadings:

a) unlawful establishment of the International Tribunal;

b) unjustified primacy of the International Tribunal over competent domestic courts;c) lack of subject-matter jurisdiction.

The Appeals Chamber proposes to examine each of the grounds of appeal in the order in which they are raised by Appellant.

II. UNLAWFUL ESTABLISHMENT OF THE INTERNATIONAL TRIBUNAL

9. The first ground of appeal attacks the validity of the establishment of the International Tribunal.

A. Meaning Of Jurisdiction

10. In discussing the Defence plea to the jurisdiction of the International Tribunal on grounds of invalidity of its establishment by the S

Council, the Trial Chamber declared:

"There are clearly enough matters of jurisdiction which are open to determination by the International Tribunal, questions of tim

and nature of an offence charged. These are properly described as jurisdictional, whereas the validity of the creation of the Inter

Tribunal is not truly a matter of jurisdiction but rather the lawfulness of its creation [. . .]" (Decision at Trial, at para. 4.)

There is apetitio principii underlying this affirmation and it fails to explain the criteria by which it the Trial Chamber disqualifies the pinvalidity of the establishment of the International Tribunal as a plea to jurisdiction. What is more important, that proposition implies a

concept of jurisdiction reduced to pleas based on the limits of its scope in time and space and as to persons and subject-matter (ratione

loci, personae and materiae). But jurisdiction is not merely an ambit or sphere (better described in this case as "competence"); it is basis visible from the Latin origin of the word itself,jurisdictio - a legal power, hence necessarily a legitimate power, "to state the law" (d

within this ambit, in an authoritative and final manner.


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This is the meaning which it carries in all legal systems. Thus, historically, in common law, the Termes de la ley provide the followin

"jurisdiction' is a dignity which a man hath by a power to do justice in causes of complaint made before him." (Stroud's Judicial1379 (5th ed. 1986).)

The same concept is found even in current dictionary definitions:

"[Jurisdiction] is the power of a court to decide a matter in controversy and presupposes the existence of a duly constituted courcontrol over the subject matter and the parties." Black's Law Dictionary, 712 (6th ed. 1990) (citing Pinner v. Pinner, 33 N.C. Ap

S.E.2d 633).)

11. A narrow concept of jurisdiction may, perhaps, be warranted in a national context but not in international law. International law, blacks a centralized structure, does not provide for an integrated judicial system operating an orderly division of labour among a numbe

tribunals, where certain aspects or components of jurisdiction as a power could be centralized or vested in one of them but not the othe

international law, every tribunal is a self-contained system (unless otherwise provided). This is incompatible with a narrow concept of

jurisdiction, which presupposes a certain division of labour. Of course, the constitutive instrument of an international tribunal can limi

jurisdictional powers, but only to the extent to which such limitation does not jeopardize its "judicial character", as shall be discussed lSuch limitations cannot, however, be presumed and, in any case, they cannot be deduced from the concept of jurisdiction itself.

12. In sum, if the International Tribunal were not validly constituted, it would lack the legitimate power to decide in time or space or o

person or subject-matter. The plea based on the invalidity of constitution of the International Tribunal goes to the very essence of juris

power to exercise the judicial function within any ambit. It is more radical than, in the sense that it goes beyond and subsumes, all the

concerning the scope of jurisdiction. This issue is a preliminary to and conditions all other aspects of jurisdiction.

B. Admissibility Of Plea Based On The Invalidity OfThe Establishment Of The International Tribunal

13. Before the Trial Chamber, the Prosecutor maintained that:


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3. The Establishment Of The International Tribunal As A Measure Under Chapter VII

32. As with the determination of the existence of a threat to the peace, a breach of the peace or an act of aggression, the Security Counvery wide margin of discretion under Article 39 to choose the appropriate course of action and to evaluate the suitability of the measuras well as their potential contribution to the restoration or maintenance of peace. But here again, this discretion is not unfettered; more

limited to the measures provided for in Articles 41 and 42. Indeed, in the case at hand, this last point serves as a basis for the Appellan

contention of invalidity of the establishment of the International Tribunal.

In its resolution 827, the Security Council considers that "in the particular circumstances of the former Yugoslavia", the establishment

International Tribunal "would contribute to the restoration and maintenance of peace" and indicates that, in establishing it, the Securitywas acting under Chapter VII (S.C. Res. 827, U.N. Doc. S/RES/827 (1993)). However, it did not specify a particular Article as a basis

action.

Appellant has attacked the legality of this decision at different stages before the Trial Chamber as well as before this Chamber on at le

grounds:

a) that the establishment of such a tribunal was never contemplated by the framers of the Charter as one of the measures to be taChapter VII; as witnessed by the fact that it figures nowhere in the provisions of that Chapter, and more particularly in Articles

which detail these measures;

b) that the Security Council is constitutionally or inherently incapable of creating a judicial organ, as it is conceived in the Chart

executive organ, hence not possessed of judicial powers which can be exercised through a subsidiary organ;

c) that the establishment of the International Tribunal has neither promoted, nor was capable of promoting, international peace, demonstrated by the current situation in the former Yugoslavia.

(a) What Article of Chapter VII Serves As A Basis For The Establishment Of A Tribunal?

33. The establishment of an international criminal tribunal is not expressly mentioned among the enforcement measures provided for i

VII, and more particularly in Articles 41 and 42.


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4. Was The Establishment Of The International Tribunal Contrary To The General Principle Whereby Courts Must Be "EstaLaw"?

41. Appellant challenges the establishment of the International Tribunal by contending that it has not been established by law. The entan individual to have a criminal charge against him determined by a tribunal which has been established by law is provided in Article

paragraph 1, of the International Covenant on Civil and Political Rights. It provides: "

In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitle

and public hearing by a competent, independent and impartial tribunal established by law." (ICCPR, art. 14, para. 1.)

Similar provisions can be found in Article 6(1) of the European Convention on Human Rights, which states: "

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and pu

hearing within a reasonable time by an independent and impartial tribunal established by law [. . .]"(European Convention for th

Protection of Human Rights and Fundamental Freedoms, 4 November 1950, art. 6, para. 1, 213 U.N.T.S. 222 (hereinafter ECHR

and in Article 8(1) of the American Convention on Human Rights, which provides: "

Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent and imp

tribunal, previously established by law." (American Convention on Human Rights, 22 November 1969, art. 8, para. 1, O.A.S. T

No. 36, at 1, O.A.S. Off. Rec. OEA/Ser. L/V/II.23 doc. rev. 2 (hereinafter ACHR).)"

Appellant argues that the right to have a criminal charge determined by a tribunal established by law is one which forms part of internaas a "general principle of law recognized by civilized nations", one of the sources of international law in Article 38 of the Statute of th

International Court of Justice. In support of this assertion, Appellant emphasises the fundamental nature of the "fair trial" or "due proc

guarantees afforded in the International Covenant on Civil and Political Rights, the European Convention on Human Rights and the AConvention on Human Rights. Appellant asserts that they are minimum requirements in international law for the administration of crim

justice.


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In relevant part, Appellant's motion alleges: " [The International Tribunal's] primacy over domestic courts constitutes an infringement

sovereignty of the States directly affected." ([Defence] Motion on the Jurisdiction of the Tribunal, 23 June 1995 (Case No. IT-94-1-T)

Appellant's Brief in support of the motion before the Trial Chamber went into further details which he set down under three headings:

(a) domestic jurisdiction;

(b) sovereignty of States;

(c)jus de non evocando.

The Prosecutor has contested each of the propositions put forward by Appellant. So have two of the amicus curiae, one before the Tria

the other in appeal.

The Trial Chamber has analysed Appellant's submissions and has concluded that they cannot be entertained.

51. Before this Chamber, Appellant has somewhat shifted the focus of his approach to the question of primacy. It seems fair to quote h

Appellant's Brief in appeal:

"The defence submits that the Trial Chamber should have denied it's [sic] competence to exercise primary jurisdiction while the

was at trial in the Federal Republic of Germany and the German judicial authorities were adequately meeting their obligations u

international law." (Defence Appeal Brief, at para. 7.5.)

However, the three points raised in first instance were discussed at length by the Trial Chamber and, even though not specifically calle

Appellant here, are nevertheless intimately intermingled when the issue of primacy is considered. The Appeals Chamber therefore proaddress those three points but not before having dealt with an apparent confusion which has found its way into Appellant's brief.

52. In paragraph 7.4 of his Brief, Appellant states that "the accused was diligently prosecuted by the German judicial authorities"(id., a

(Emphasis added)). In paragraph 7.5 Appellant returns to the period "while the accused was at trial." (id., at para 7.5 (Emphasis added

These statements are not in agreement with the findings of the Trial Chamber I in its decision on deferral of 8 November 1994:


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The Chamber now proposes to examine those three points in the order in which they have been raised by Appellant.

A. Domestic Jurisdiction

54. Appellant argued in first instance that:

"From the moment Bosnia-Herzegovina was recognised as an independent state, it had the competence to establish jurisdiction

crimes that have been committed on its territory." (Defence Trial Brief, at para. 5.)

Appellant added that:

"As a matter of fact the state of Bosnia-Herzegovina does exercise its jurisdiction, not only in matters of ordinary criminal law, matters of alleged violations of crimes against humanity, as for example is the case with the prosecution of Mr Karadzic et al."(

5.2.)

This first point is not contested and the Prosecutor has conceded as much. But it does not, by itself, settle the question of the primacy o

International Tribunal. Appellant also seems so to realise. Appellant therefore explores the matter further and raises the question of Sta

sovereignty.

B. Sovereignty Of States

55. Article 2 of the United Nations Charter provides in paragraph 1: "The Organization is based on the principle of the sovereign equa

Members."

In Appellant's view, no State can assume jurisdiction to prosecute crimes committed on the territory of another State, barring a univers"justified by a treaty or customary international law or an opinio juris on the issue." (Defence Trial Brief, at para. 6.2.)

Based on this proposition, Appellant argues that the same requirements should underpin the establishment of an international tribunal

invade an area essentially within the domestic jurisdiction of States. In the present instance, the principle of State sovereignty would h

violated. The Trial Chamber has rejected this plea, holding among other reasons:


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"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 so

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 fro

State." (Decision at Trial, para. 41.)

The Trial Chamber relied on the judgement of the District Court of Jerusalem inIsrael v. Eichmann:

"The right to plead violation of the sovereignty of a State is the exclusive right of that State. Only a sovereign State may raise th

waive it, and the accused has no right to take over the rights of that State." (36International Law Reports 5, 62 (1961), affirmeSupreme Court of Israel, 36 International Law Reports 277 (1962).)

Consistently with a long line of cases, a similar principle was upheld more recently in the United States of America in the matter ofUn

v. Noriega:

"As a general principle of international law, individuals have no standing to challenge violations of international treaties in the a

protest by the sovereign involved." (746 F. Supp. 1506, 1533 (S.D. Fla. 1990).)

Authoritative as they may be, those pronouncements do not carry, in the field of international law, the weight which they may bring tonational judiciaries. Dating back to a period when sovereignty stood as a sacrosanct and unassailable attribute of statehood, this concep

has suffered progressive erosion at the hands of the more liberal forces at work in the democratic societies, particularly in the field of h

rights.

Whatever the situation in domestic litigation, the traditional doctrine upheld and acted upon by the Trial Chamber is not reconcilable, i

International Tribunal, with the view that an accused, being entitled to a full defence, cannot be deprived of a plea so intimately conne

and grounded in, international law as a defence based on violation of State sovereignty. To bar an accused from raising such a plea is tto deciding that, in this day and age, an international court could not, in a criminal matter where the liberty of an accused is at stake, ex

plea raising the issue of violation of State sovereignty. Such a startling conclusion would imply a contradiction in terms which this Ch

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56. That Appellant be recognised the right to plead State sovereignty does not mean, of course, that his plea must be favourably receiv

to discharge successfully the test of the burden of demonstration. Appellant's plea faces several obstacles, each of which may be fatal,

Chamber has actually determined.

Appellant can call in aid Article 2, paragraph 7, of the United Nations Charter: "Nothing contained in the present Charter shall authori

United Nations to intervene in matters which are essentially within the domestic jurisdiction of any State [. . .]." However, one should

the commanding restriction at the end of the same paragraph: "but this principle shall not prejudice the application of enforcement mea

Chapter VII." (United Nations Charter, art. 2, para. 7.)

Those are precisely the provisions under which the International Tribunal has been established. Even without these provisions, matterstaken out of the jurisdiction of a State. In the present case, the Republic of Bosnia and Herzegovina not only has not contested the juris

the International Tribunal but has actually approved, and collaborated with, the International Tribunal, as witnessed by:

a) Letter dated 10 August 1992 from the President of the Republic of Bosnia and Herzegovina addressed to the Secretary-Gener

United Nations (U.N. Doc. E/CN.4/1992/S-1/5 (1992));

b) Decree with Force of Law on Deferral upon Request by the International Tribunal 12 Official Gazette of the Republic of Bos

Herzegovina 317 (10 April 1995) (translation);

c) Letter from Vasvija Vidovic, Liaison Officer of the Republic of Bosnia and Herzegovina, to the International Tribunal (4 July

As to the Federal Republic of Germany, its cooperation with the International Tribunal is public and has been previously noted.

The Trial Chamber was therefore fully justified to write, on this particular issue:

"[I]t is pertinent to note that the challenge to the primacy of the International Tribunal has been made against the express intent

States most closely affected by the indictment against the accused - Bosnia and Herzegovina and the Federal Republic of Germa

former, on the territory of which the crimes were allegedly committed, and the latter where the accused resided at the time of hihave unconditionally accepted the jurisdiction of the International Tribunal and the accused cannot claim the rights that have be


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specifically waived by the States concerned. To allow the accused to do so would be to allow him to select the forum of his cho

contrary to the principles relating to coercive criminal jurisdiction." (Decision at Trial, at para. 41.)

57. This is all the more so in view of the nature of the offences alleged against Appellant, offences which, if proven, do not affect the i

one State alone but shock the conscience of mankind.

As early as 1950, in the case of General Wagener, the Supreme Military Tribunal of Italy held:

"These norms [concerning crimes against laws and customs of war], due to their highly ethical and moral content, have a univer

character, not a territorial one.

[. . .]

The solidarity among nations, aimed at alleviating in the best possible way the horrors of war, gave rise to the need to dictate ru

do not recognise borders, punishing criminals wherever they may be.

[. . .]

Crimes against the laws and customs of war cannot be considered political offences, as they do not harm a political interest of a

State, nor a political right of a particular citizen. They are, instead, crimes oflse-humanit (reati di lesa umanit) and, as previodemonstrated, the norms prohibiting them have a universal character, not simply a territorial one. Such crimes, therefore, due to

subject matter and particular nature are precisely of a different and opposite kind from political offences. The latter generally, c

the States against whom they are committed; the former concern all civilised States, and are to be opposed and punished, in the as the crimes of piracy, trade of women and minors, and enslavement are to be opposed and punished, wherever they may have

committed (articles 537 and 604 of the penal code)." (13 March 1950, in Rivista Penale 753, 757 (Sup. Mil. Trib., Italy 1950; utranslation).1

Twelve years later the Supreme Court of Israel in the Eichmann case could draw a similar picture:

"[T]hese crimes constitute acts which damage vital international interests; they impair the foundations and security of the intern

community; they violate the universal moral values and humanitarian principles that lie hidden in the criminal law systems adop


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very same conduct in an internal armed conflict. To illustrate, the Security Council has repeatedly condemned the wanton devastation

destruction of property, which is explicitly punishable only under Articles 2 and 3 of the Statute. Appellant maintains that these Articlonly to international armed conflicts. However, it would have been illogical for the drafters of the Statute to confer on the Internationa

the competence to adjudicate the very conduct about which they were concerned, only in the event that the context was an internationa

when they knew that the conflicts at issue in the former Yugoslavia could have been classified, at varying times and places, as internal

international, or both.

Thus, the Security Council's object in enacting the Statute - to prosecute and punish persons responsible for certain condemned acts be

committed in a conflict understood to contain both internal and international aspects - suggests that the Security Council intended that,

extent possible, the subject-matter jurisdiction of the International Tribunal should extend to both internal and international armed con

In light of this understanding of the Security Council's purpose in creating the International Tribunal, we turn below to discussion of A

specific arguments regarding the scope of the jurisdiction of the International Tribunal under Articles 2, 3 and 5 of the Statute.

3. Logical And Systematic Interpretation Of The Statute

(a) Article 2

79. Article 2 of the Statute of the International Tribunal provides:

"The International Tribunal shall have the power to prosecute persons committing or ordering to be committed grave breaches oGeneva Conventions of 12 August 1949, namely the following acts against persons or property protected under the provisions o

relevant Geneva Convention:

(a) wilful killing;

(b) torture or inhuman treatment, including biological experiments;

(c) wilfully causing great suffering or serious injury to body or health;

(d) extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wanto


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accused on the basis of those provisions and the relevant penal provisions of the Danish Penal Code, (see id. at 7-8)). This judgement i

that some national courts are also taking the view that the "grave breaches" system may operate regardless of whether the armed confli

international or internal.

84. Notwithstanding the foregoing, the Appeals Chamber must conclude that, in the present state of development of the law, Article 2

Statute only applies to offences committed within the context of international armed conflicts.

85. Before the Trial Chamber, the Prosecutor asserted an alternative argument whereby the provisions on grave breaches of the Genev

Conventions could be applied to internal conflicts on the strength of some agreements entered into by the conflicting parties. For the re

stated below, in Section IV C (para. 144), we find it unnecessary to resolve this issue at this time.

(b) Article 3

86. Article 3 of the Statute declares the International Tribunal competent to adjudicate violations of the laws or customs of war. The pr

states:

"The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations sha

but not be limited to:

(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;

(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;

(c) attack, or bombardment, by whatever means, of undefended towns, villages, dwellings, or buildings;

(d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and science

monuments and works of art and science;

(e) plunder of public or private property."


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conclude that this list may be construed to include other infringements of international humanitarian law. The only limitation is that su

infringements must not be already covered by Article 2 (lest this latter provision should become superfluous). Article 3 may be taken tviolations of international humanitarian law other than the "grave breaches" of the four Geneva Conventions falling under Article 2 (omatter, the violations covered by Articles 4 and 5, to the extent that Articles 3, 4 and 5 overlap).

88. That Article 3 does not confine itself to covering violations of Hague law, but is intended also to refer to all violations of internatio

humanitarian law (subject to the limitations just stated), is borne out by the debates in the Security Council that followed the adoption resolution establishing the International Tribunal. As mentioned above, three Member States of the Council, namely France, the Unite

the United Kingdom, expressly stated that Article 3 of the Statute also covers obligations stemming from agreements in force between

conflicting parties, that is Article 3 common to the Geneva Conventions and the two Additional Protocols, as well as other agreements

into by the conflicting parties. The French delegate stated that:

"[T]he expression 'laws or customs of war' used in Article 3 of the Statute covers specifically, in the opinion of France, all the o

that flow from the humanitarian law agreements in force on the territory of the former Yugoslavia at the time when the offences

committed." (Provisional Verbatim Record of the 3217th Meeting, at 11, U.N. Doc. S/PV.3217 (25 May 1993).)

The American delegate stated the following:

"[W]e understand that other members of the Council share our view regarding the following clarifications related to the Statute

Firstly, it is understood that the 'laws or customs of war' referred to in Article 3 include all obligations under humanitarian law ain force in the territory of the former Yugoslavia at the time the acts were committed, including common article 3 of the 1949 G

Conventions, and the 1977 Additional Protocols to these Conventions." (Id., at p. 15.)

The British delegate stated:

"[I]t would be our view that the reference to the laws or customs of war in Article 3 is broad enough to include applicable intern

conventions." (Id., at p. 19.)

It should be added that the representative of Hungary stressed:


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resolution was "declaratory of existing customary international law" or, in other words, "a correct restatement" of "principles of custom


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international law." (See 67 American Journal of International Law (1973), at 122, 124.)

111. Elaborating on the principles laid down in resolution 2444, in 1970 the General Assembly unanimously5 adopted resolution 2675principles for the protection of civilian populations in armed conflicts." In introducing this resolution, which it co-sponsored, to the Th

Committee, Norway explained that as used in the resolution, "the term 'armed conflicts' was meant to cover armed conflicts of all kind

important point, since the provisions of the Geneva Conventions and the Hague Regulations did not extend to all conflicts." (U.N. GAComm., 25th Sess., 1785th Mtg., at 281, U.N. Doc. A/C.3/SR.1785 (1970);see also U.N. GAOR, 25th Sess., 1922nd Mtg., at 3, U.N.

A/PV.1922 (1970) (statement of the representative of Cuba during the Plenary discussion of resolution 2675).)The resolution stated th

"Bearing in mind the need for measures to ensure the better protection of human rights in armed conflicts of all types, [. . . the GAssembly] Affirms the following basic principles for the protection of civilian populations in armed conflicts, without prejudicefuture elaboration within the framework of progressive development of the international law of armed conflict:

1. Fundamental human rights, as accepted in international law and laid down in international instruments, continue to apply full

situations of armed conflict.

2. In the conduct of military operations during armed conflicts, a distinction must be made at all times between persons activelyin the hostilities and civilian populations.

3. In the conduct of military operations, every effort should be made to spare civilian populations from the ravages of war, and a

necessary precautions should be taken to avoid injury, loss or damage to civilian populations.

4. Civilian populations as such should not be the object of military operations.

5. Dwellings and other installations that are used only by civilian populations should not be the object of military operations.

6. Places or areas designated for the sole protection of civilians, such as hospital zones or similar refuges, should not be the obje

military operations.


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"Each party undertakes, when it is informed, in particular by the ICRC, of any allegation of violations of international humanita

open an enquiry promptly and pursue it conscientiously, and to take the necessary steps to put an end to the alleged violations o


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their recurrence and to punish those responsible in accordance with the law in force."

(Agreement No. 1, art. 5, para. 2 (Emphasis added).)

Furthermore, the Agreement of 1st October 1992 provides in Article 3, paragraph 1, that

"All prisoners not accused of, or sentenced for, grave breaches of International Humanitarian Law as defined in Article 50 of th

Article 51 of the Second, Article 130 of the Third and Article 147 of the Fourth Geneva Convention, as well as in Article 85 of

Protocol I, will be unilaterally and unconditionally released." (Agreement No. 2, 1 October 1992, art. 3, para. 1.)

This provision, which is supplemented by Article 4, paragraphs 1 and 2 of the Agreement, implies that all those responsible for offencto the Geneva provisions referred to in that Article must be brought to trial. As both Agreements referred to in the above paragraphs w

intended to apply in the context of an internal armed conflict, the conclusion is warranted that the conflicting parties in Bosnia-Herzeg

clearly agreed at the level of treaty law to make punishable breaches of international humanitarian law occurring within the framework

conflict.

(v) Conclusion

137. In the light of the intent of the Security Council and the logical and systematic interpretation of Article 3 as well as customary int

law, the Appeals Chamber concludes that, under Article 3, the International Tribunal has jurisdiction over the acts alleged in the indict

regardless of whether they occurred within an internal or an international armed conflict. Thus, to the extent that Appellant's challenge

jurisdiction under Article 3 is based on the nature of the underlying conflict, the motion must be denied.

(c) Article 5

138. Article 5 of the Statute confers jurisdiction over crimes against humanity. More specifically, the Article provides:

"The International Tribunal shall have the power to prosecute persons responsible for the following crimes when committed in a

conflict, whether international or internal in character, and directed against any civilian population:

(a) murder;

(b) i i


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(b) extermination;

(c) enslavement;

(d) deportation;

(e) imprisonment;

(f) torture;

(g) rape;

(h) persecutions on political, racial and religious grounds;

(i) other inhumane acts."

As noted by the Secretary-General in his Report on the Statute, crimes against humanity were first recognized in the trials of war crimi

following World War II. (Report of the Secretary-General, at para. 47.) The offence was defined in Article 6, paragraph 2(c) of the Nu

Charter and subsequently affirmed in the 1948 General Assembly Resolution affirming the Nuremberg principles.

139. Before the Trial Chamber, Counsel for Defence emphasized that both of these formulations of the crime limited it to those acts co"in the execution of or in connection with any crime against peace or any war crime." He argued that this limitation persists in contem

international law and constitutes a requirement that crimes against humanity be committed in the context of an international armed con

assertedly was missing in the instant case). According to Counsel for Defence, jurisdiction under Article 5 over crimes against humani"committed in armed conflict, whether international or internal in character" constitutes an ex post facto law violating the principle of

crimen sine lege. Although before the Appeals Chamber the Appellant has forgone this argument (see Appeal Transcript, 8 September

45), in view of the importance of the matter this Chamber deems it fitting to comment briefly on the scope of Article 5.


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international law, as are most customary rules of international humanitarian law. This analysis of the jurisdiction of the International T

borne out by the statements made in the Security Council at the time the Statute was adopted. As already mentioned above (paras. 75 at ti f th U it d St t th U it d Ki d d F ll d th t A ti l 3 f th St t t did t l d li ti


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representatives of the United States, the United Kingdom and France all agreed that Article 3 of the Statute did not exclude application

international agreements binding on the parties. (Provisional Verbatim Record, of the U.N.SCOR, 3217th Meeting., at 11, 15, 19, U.NS/PV.3217 (25 May 1993).).

144. We conclude that, in general, such agreements fall within our jurisdiction under Article 3 of the Statute. As the defendant in this cbeen charged with any violations of any specific agreement, we find it unnecessary to determine whether any specific agreement gives

International Tribunal jurisdiction over the alleged crimes.

145. For the reasons stated above, the third ground of appeal, based on lack of subject-matter jurisdiction, must be dismissed.

V. DISPOSITION

146. For the reasons hereinabove expressed

and

Acting under Article 25 of the Statute and Rules 72, 116 bis and 117 of the Rules of Procedure and Evidence,

The Appeals Chamber

(1) By 4 votes to 1,

Decides that the International Tribunal is empowered to pronounce upon the plea challenging the legality of the establishment oInternational Tribunal.

IN FAVOUR:PresidentCassese,Judges Deschnes, Abi-Saab and Sidhwa

AGAINST:Judge Li

(2) Unanimously


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No. 18


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The Prosecutor v. Dragan Nikolic - Case No. IT-94-2-AR73

Decision on Interlocutory Appeal Concerning Legality of Arrest

5 June 2003Appeals Chamber (Judges Meron [Presiding], Pocar, Shahabuddeen, Gney and El Madhi)

The impact of a breach of a States sovereignty on the exercise of jurisdiction - The impact of a violation of an accuseds human rthe exercise of jurisdiction

The impact of a breach of a States sovereignty on the exercise of jurisdiction: accountability for Universally Condemned Offences is a necessaryfor the achievement of international justice, which plays a critical role in the reconciliation and rebuilding based on the rule of law of countries atorn apart by international and internecine conflicts. The damage caused to international justice by not apprehending fugitives accused of seriouof international humanitarian law is comparatively higher than the injury, if any, caused to the sovereignty of a State by a limited intrusion in itparticularly when the intrusion occurs in default of the States cooperation. In cases of Universally Condemned Offences, jurisdiction should not on the ground that there was a violation of the sovereignty of a State, when the violation is brought about by the apprehension of fugitives frominternational justice, whatever the consequences for the international responsibility of the State or organisation involved.

The impact of a violation of an accuseds human rights on the exercise of jurisdiction: certain human rights violations are of such a serious naturequire that the exercise of jurisdiction be declined. Apart from such exceptional cases the remedy of setting aside jurisdiction will usually bedisproportionate. The correct balance must therefore be maintained between the fundamental rights of the accused and the essential interests o

international community in the prosecution of persons charged with serious violations of international humanitarian law.

Procedural Background

On 9 October 2002, Trial Chamber II rendered its decision on the legality of the arrest of Dragan Nikolic (the Accused).1


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127 of the Rules of Procedure and Evidence, 20 January 2003.8.Nikolic, IT-94-AR72, Decision to Grant Certification to Appeal the Trial Chambers Decision on Defence Motion Challenging the Exercise of Jurisdiction by the Tribunal, 17 Ja9. As the name of the Federal Republic of Yugoslavia officially changed on 4 February 2003 and is now Serbia and Montenegro, the Appeals Chamber decided to refer to Serbia and its Decision, except when quoting portions of the Impugned Decision. The present summary follows the same logic.


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, p q g p p g p y g

10. Paras. 21-23.11. Para. 24.12. Para. 25.13. Para. 26.14.Ibid.15. Para. 30.16.Ibid.17.Ibid.

No. 19


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OEA/Ser.L/V/II.98doc. 6 rev.13 April 1998Original: Spanish

CASE 11.137JUAN CARLOS ABELLA

ARGENTINA [1]/November 18, 1997

I. BACKGROUND

A. CONTEXT

1. This case concerns events that took place on January 23 and 24, 1989, at thebarracks of the General Belgrano Mechanized Infantry Regiment No. 3 (RIM 3), located at LaTablada, Buenos Aires province, and the consequences ensuing from those events for 49persons on whose behalf a complaint was filed with the Inter-American Commission onHuman Rights (hereinafter called the Commission). On January 23, 1989, 42 armed personslaunched an attack on the aforementioned barracks. The attack precipitated a combat ofapproximately 30 hours duration between the attackers and Argentine military personnelwhich resulted in the deaths of 29 of the attackers and several State agents. [2]/ The RIM 3barracks had an arsenal from which the attackers, after having entered the site, seized anumber of weapons which they used to defend their positions.

2. Although democracy was restored in Argentina in December 1983 after almosteight years of military dictatorship, several uprisings involving the armed forces haveoccurred since then. Specifically, little over a month before the events at La Tablada, onDecember 12, 1988 a military uprising led by Colonel Mohamed Ali Seineldin took place in


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American Convention").

i. The Victims


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6. The petitioners' complaint was filed on behalf of 49 victims, whose namesappear below, and which are subdivided based on legal and factual criteria as described inthe complaint.

a. Sentenced to prison (20 persons)

Life: Claudia Beatriz Acosta, Miguel Angel Aguirre, Luis Alberto Daz, Roberto Felicetti,Isabel Margarita Fernndez de Mesutti, Gustavo Alberto Mesutti, Jos Alejandro Moreyra,

Carlos Ernesto Motto, Sergio Manuel Paz, Luis Daro Ramos, Sebastin Joaqun Ramos,Claudio Nstor Rodrguez, and Claudio Omar Veiga.

20 years: Juan Antonio Puigjan.

15 years: Dora Esther Molina de Felicetti.

13 years: Miguel Angel Faldutti and Daniel Alberto Gabioud Almirn.

11 years: Juan Manuel Burgos and Cintia Alejandra Castro.

10 years: Juan Carlos Abella.

b. Disappeared (6 persons)

Carlos Alberto Burgos, Jos Alejandro Daz, Juan Manuel Mura, Ivn Ruiz, CarlosSamojedny, and Roberto Snchez.

c. Unlawfully executed (4 persons)

Berta Calvo, Francisco Provenzano, Pablo Martn Ramos, and Ricardo Veiga.

d. Dead (19 persons)

Eduardo Aguero, Oscar Allende, Ricardo Arjona, Julio Arroyo, Jorge Baos, Pablo Belli,Pedro Cabaas, Jos Luis Caldu, Jos Chebaia, Claudia Deleis, Flix Daz, Roberto Vital


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Pedro Cabaas, Jos Luis Caldu, Jos Chebaia, Claudia Deleis, Flix Daz, Roberto Vital

Gaguine, Juan Gonzlez Rabuggetti, Claudia Lareu, Horacio Luque, Miguel Angel Luque,Carlos Maldonado, Sergio Mamani, and Aldira Pereyra Nunes.

ii. Events

a. The attack and excessive use of force

7. The petitioners allege that the attack on RIM 3 was intended to abort a military

coup d'etat. The petition starts the description of the events as follows:

On January 23, 1989, a group of members of the Movimiento Todos por la Patriadecided to enter the La Tablada barracks because of information that a new military coupwas being planned there...that group of persons took action in the certain belief that thecoup was imminent, and they based their action on a precept in the Argentine NationalConstitution, Article 21, which establishes for citizens the obligation to "take up arms indefense of the Constitution."

8. The group, consisting of some 40 persons, broke into the barracks atapproximately 6:30 a.m., by ramming through the gate in their vehicles. The petitionclarifies:

...it is important to point out that the attackers used their personal vehicles, werecarrying their personal identification papers and were using civilian weapons purchased inconformity with existing rules on this subject for acquisition.

9. The petition continues by stating that one group took over the barracksstockade, where several soldiers were found under arrest, and the rest of the groupinfiltrated the interior of the barracks. After a short time, the attackers were surrounded byapproximately 3,500 police forces, who cordoned off the barracks, and subjected them toindiscriminate fire. Three hours after the attack had started, the attackers signaled theirintention to surrender by waving white flags. The petitioners stated that, despite these

efforts, the following occurred:

...close to noon, troops arrived under the command of General Arrillaga. With theirarrival, the gunfire began anew, and was stepped up from rifles and automatic pistols to


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, g g , pp p p

tanks, armored vehicles and cannons. Some parts of the barracks were reduced to rubble,without any acceptance of the attackers' surrender or even any attempt to engage them indialogue. Incendiary bombs were also used.

10. The petitioners allege that the State engaged in "bloody repression" to retakethe RIM 3 barracks at La Tablada. They described this event as "unnecessary, withoutmeasure, disproportionate, inhumane, ethically indefensible, immoral and legally violative ofall current legislation on this subject." They make the following points in the complaint:

a) The La Tablada facility was surrounded by civilian buildings;

b) Immediately after they entered the barracks, the attackers were surrounded bya police force totaling 3,500 members, who remained there until the army troops arrived atmid-morning on January 23, 1989;

c) The army troops were made up of special forces (commandos), supported byarmored vehicles, tanks, heavy machine guns, mortars and heavy artillery;

d) The troops had air support from a group of helicopters;

e) White phosphorus or incendiary bombs were used;

f) The group of attackers consisted of approximately 40 persons, using commoncivilian weapons, who had given clear signals of surrender starting at 9:00 a.m. on the day ofthe attack;

g) At the time mentioned in the preceding sentence, the number of dead andwounded on both sides was still small.

11. The petition also contains several remarks about the "domestic legislativeframework under which the recovery of the barracks should have occurred," as well as"repressive methodology." In connection with the second point, they mention the attackers'

attempt to surrender which occurred at 9:00 a.m. on January 23, 1989:

That offer was not accepted, and, to the contrary, was answered by renewed firewhich forced the attackers to take cover in the RIM 3 buildings... Nothing that should have


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been done was done. To the contrary, the explanation given by the head of the repressionforces, General Arrillaga, was fantasy, in that he said that he did not give the order to acceptthe surrender "since he did not have a megaphone."

12. In their communication of February 2, 1994, the petitioners state that all thematerial and human loss, including the deaths of the soldiers who were inside theheadquarters:

...is the consequence and responsibility of that unnecessary bombardment, which wascarried out more specifically for the physical elimination of persons, and the politicalutilization of an event which could have been resolved by much less bloody means.

13. A videotape submitted by petitioners to the Commission contains scenes of onepart of the barracks where several persons were waving a white flag, followed by bombexplosions. The petitioners state in their communication of September 27, 1994, that thetape constitutes proof that the attackers had attempted to surrender during the morning ofJanuary 23, 1989.

14. The above mentioned video tape starts with a scene depicting explosions insidethe RIM 3 barracks (they allege the explosives are napalm, or phosphorus bombs). In thefollowing scene, an army instructor appears explaining that such explosives were never usedin military uprisings; another instructor describes "marxist subversives" as persons without afatherland, which would place them in a special category, worse than any other enemy. Thepetitioners explain that this is a part of the National Security Doctrine applied in Argentinaduring the most recent military dictatorship.

15. In other scenes of the videotape, some persons are seen inside a military basewaving a white flag. According to the petitioners, this constitutes proof that the surrenderattempts began on the first day of the attack, and that it refutes General Arrillaga'sstatement that it happened on the second day. The same military officer said that tear gaswas not available to him at the time, but another part of the videotape shows a policeman


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jumped out of that area to escape the collapse of the upper floor along with Claudia Lareu(later killed in combat) and Carlos Samojedny (later disappeared). Mura and Juan VitalGaguine could not get out. The immediately following events, as well as the outcome, aredescribed by the petitioners as follows:


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The survivors called to them several times during the night but received no answer.In the morning, they climbed over the rubble but did not find the bodies. Months later thebody of Roberto Vital Gaguine was identified by family members; the body of Juan ManuelMura has not been identified and thus he is considered disappeared.

Treatment of survivors after surrender

30. The events after the surrender are reported as follows:

The thirteen prisoners were taken from the cell one by one and moved by elevator toa place where they were required to strip. Along the way they were hit repeatedly. Afterthis they were moved to small cells where they were kept naked. Several times they weretaken to interrogations, again hooded. In these interrogations they were beaten again andthe interrogation was essentially ideological in nature. Several persons, women among them,participated in these sessions. On Wednesday morning, the prisoners received some type ofmedical care.

31. The prisoners in the group who had the most serious wounds were transferredto the Ramos Meja hospital to be cared for. The petitioners alleged that they were torturedagain in the cell block of the hospital; Joaqun Sebastin Ramos was treated without hishandcuffs even being removed. The doctor told him that he would like to make him talk "bysticking a hot poker up his anus." And the police officer said "...I don't know why we arewasting our time with these guys. If they had killed them, we would not be bothered withthem now."

32. The prisoners were moved in different groups and on different days to thecourts, usually with hoods over their heads and handcuffed, during which time they werebeaten and threatened. The complaint states:

During the last transfer to the courts, Joaqun Sebastin Ramos, Claudio Rodrguez,Claudio Veiga, Luis Daz and Carlos Motto had hoods over their heads, like during the other


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66. Regarding Article 8 of the American Convention, the petition cites it as "themost repeatedly violated rule." The guarantees set out in clause 1 of that article appear tohave been violated because, according to the petitioners, the instructions judge and thesentencing court lacked impartiality and independence. Even though the competence of

these parties was established earlier by Law 23077, the complaint states that inthe Abella case competence was incorrectly based on the nature of the events at La Tablada,


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rather than on the place where they occurred. They characterize this violation as "subtle,"because the judges:

Simply imposed a law that should not have been applied. The judges were the correctones, but in different roles. They should have been the ones to grant the procedural law thatshould have been used in this case: the Code of Penal Procedures.

67. The petitioners believe that there was a violation of Article 24 of the AmericanConvention because different treatment has been given to military personnel who haveengaged in the type of criminal acts provided for in Law 23077. The references in thecomplaint emphasize the nature of the repression at La Tablada, how the prisoners weretreated, the sentences and the conditions of imprisonment. Comparing these with "acts thatwere more or less similar undertaken by the military," they believe that there is an obviousdiscrimination and that the right to equal treatment under the law has been violated for thepersons presented as the victims in this case.

C. STATE REPLY

68. The State's initial response to the petitioner's complaint, which was forwardedto the Commission on February 18, 1994, deals fundamentally with the admissibility of thecase. The issue of admissibility is discussed separately in a subsequent chapter of thisreport. In its letter the State also provides an account of the background and scope of Law23077 which was applied to those tried in the Abella case in Argentina. It refers to thestatement of reasons for that law, and quotes:

...the attempt to ignore the will of the people, by violating the provisions of theNational Constitution regarding the appointment of authorities and the sanctioning of norms,constitutes one of the most serious crimes that can be committed against the rights ofindividuals and the interests of the country.

i. The attack and recapture of the military base

69. The State's information is expanded in its letter that reached the Commissionon January 9, 1995. This letter recounts the events that occurred on January 23, 1989 at La

Tablada, but does not make direct reference to the complaints of excessive use of force inrecovery of the RIM 3 barracks, or to the attendant violation of the right to life alleged by the


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petitioners.

70. Regarding the intervention of the armed forces in the operation, the Statestates that this intervention was legitimate in nature because the events took place in anarea subject to military control. It states that in application of a general principle of law,"whoever has custody of the place also has the right to repel intruders..."

71. Furthermore, the State uses the Argentine National Constitution to base itsopinion that the order to recover the barracks was given by the president of the nation andnot by the judge since this was a military operation that was the responsibility of thecommander-in-chief and not subject to the judicial body's competence. The State terms thatorder "...an institutional act of a discretionary nature, free of judicial control, althoughsubject to juridical order." However, it recognizes in its reply that actions taken as aconsequence of this institutional act are subject to control of the courts "...since thoseactions could affect the subjective rights of those administered."

72. The State contends that the president of Argentina, in the exercise of hispowers as commander-in-chief of the armed forces, ordered the recovery of the RIM 3barracks at La Tablada. The petitioners argue that the order should have been issued by a judge. The State considers this an erroneous position since the matter involved a militaryoperation that went beyond the jurisdictional powers of a magistrate. Accordingly, the Statecontends that the order was issued in the legitimate use of discretionary powers of thepresident.

73. The State's communication refers to international humanitarian law and to thedefinition contained in the Geneva Convention of August 12, 1949 on the Treatment ofPrisoners of War. It notes that such rules apply only to international armed conflicts, whichwas not the case of the events of January 1989 at La Tablada.


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in an exclusive way the basic reasons for the penal judgment.

77. The State explains the context of the situation that prevailed in December 1983when democracy was restored in Argentina. Law 23077 was part of "...a package of laws

aimed fundamentally at building a juridical order that was consistent with the republicansystem of State as embodied in Article 1 of the National Constitution." One of the crimesd fi d b thi l th t f t d illi it i ti i h bl b 5 t 20 f


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defined by this law was that of aggravated illicit association, punishable by 5 to 20 years ofimprisonment for the following acts:

...whoever takes part, cooperates or assists in the formation or the maintenance of anillicit association developed to commit crimes when the action contributes to endangering theeffectiveness of the National Constitution, provided that such an association meets at leasttwo of the following characteristics:

a) Consists of ten or more individuals;

b) Possesses a military or military type organization;

c) Has a cellular structure;

d) Avails itself of weapons of war or explosives of great offensive power;

e) Operates in more than one of the political subdivisions of the country;

f) Is composed of one or more officers or non-commissioned officers of the armedor police forces;

g) Has well known connections with similar organizations in the country orabroad;

h) Receives some help, assistance or direction from public officials.

78. The definition of the crime of rebellion in the Penal Code was also amended byLaw 23077 which sets out a sentence of 5 to 15 years of imprisonment for those who:

...rise up in arms to change the Constitution, depose any of the public powers of the


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the Commission.

83. Continuing with its analysis of the applicable legislation, the State contendedthat Law 23077 does not deprive the accused of the essential means of securing their rights.

According to the State, the Abella case produced a judgment based on a law in effect prior tothe event, which was the grounds for this trial. Regular judges of the republic were involvedand the accused were given sufficient opportunity to be heard and to produce evidence The


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and the accused were given sufficient opportunity to be heard and to produce evidence. TheState concluded:

...it is necessary to note that the procedure adopted under Law 23077 is responsive tothe most modern legislative techniques and chooses at the international level implementationof the oral trial, the procedure that normally signifies, because of its immediacy, thepossibility of holding hearings in a public manner and a one-level trial.

84. The alleged violation of the right to appeal the decision of the San MartnFederal Appeals Court does not pertain, according to the State, since the defense had theopportunity to file a special appeal to the Supreme Court of Justice of Argentina for thepurpose of overturning the decision. The reply also deals with the active participation of theSupreme Court in the review of the sentences that were supposedly arbitrary through thisspecial appeal procedure. In this context, the State cites the Inter-American Court ofHumanRights:

It must not be rashly presumed that a State Party to the Convention has failed tocomply with its obligation to provide effective domestic remedies. [4]/

85. The opinion of the Inter-American Court is also cited with respect to the remedybeing adequate and effective, "capable of producing the result for which it wasdesigned." [5]/ However,

...the mere fact that a domestic remedy does not produce a result favorable to the

petitioner does not in and of itself demonstrate the inexistence or exhaustion of all effectivedomestic remedies... [6]/

86. The State maintains that the special remedy meets the requirements defined bythe Inter-American Court. To that end, the reply mentions that one of the members cast aminority vote in the ruling of the Supreme Court of Justice of Argentina. The dissenting

member, Carlos Fayt, held that the decision of the San Martn Federal Court should havebeen reversed and returned to that Court to issue a new sentence. The State considers:

...this fact indicates that the scope of the remedy was enough, through this review, to

have the verdict overruled, as would have occurred if the minority vote had been shared bythe majority of the Supreme Court.


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87. The State further maintains that the single trial system is the only oneconsistent with the principles of oral proceedings, immediacy and free assessment ofevidence. However, the advantages of an oral and public trial do not absolve the systemfrom the important right of appeal for a review of the legality and reasonability of theverdict. The oral trial is only the first stage of the criminal proceeding which, independentlyof and viewed within a set of stages that constitutes the penal process, should be adjusted to

the presumptions of due process and the right to a fair trial as embodied in Article 8 of theAmerican Convention.

88. The State also argues that the petitioners had the opportunity to have theverdict reviewed under Article 14 of Law 48, before the Supreme Court of Justice of thecountry, in the form of a special appeal. However, the facts of the case show that the specialappeal filed by the petitioners in the Abella case was dismissed by the Federal Court ofAppeals, dismissal confirmed by the Supreme Court. Therefore, the petitioners never had ahigher court review the sentence in the Abella case.

89. The State's reply of February 1994 includes the major pieces of evidence oftheAbella case in Argentina and assures that those documents:

...are evidence of the absence of arbitrary or discriminatory conduct imputable to theArgentine system of justice, and also demonstrate the securities afforded through respect forthe principle of due process.

90. In its second reply the State again addresses the issue of the special appeal. Itmentions the cases in which the appeal was in order under Argentine law. It contends thatthe questions drawn from the framework of this appeal are also not the subject forconsideration by the Commission by virtue of what is known as the "fourth instanceformula."[7]/


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presented and discarded by the court had been included.

93. On March 17, 1992, the Supreme Court of Justice of the Nation rejected theappeal, agreeing with the opinion of the attorney general. In relation to the "lack of

independent grounds," pointed out by the attorney general, the court stated:

...the appeal in question has been made up of isolated and independent written


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...the appeal in question has been made up of isolated and independent writtendocuments, in some cases using photocopies of presentations at the lower level, which,consequently, were not corrected to lay the groundwork for constitutional issues arising as aresult of the verdict reached, and constitute a mere repetition of offenses alreadysubstantiated and resolved by the lower court.

94. The State points out that the dissenting vote of judge Carlos Fayt in the ruling

of March 17, 1992, rejects the pretention advanced by the defense attorneys to the effectthat the conduct of the La Tablada attackers was protected by Article 21 of the NationalConstitution of Argentina which establishes the obligation for citizens to take up arms indefense of the country and the Constitution. In this connection, the State points out that Dr.Carlos Fayt:

...also does not consider valid the offenses aimed at attacking the procedure followedwhich led to the division of the cases in effect at the time of the substantiation, since it wasbased on formal legal texts and Law 23077 does not result in any effect on the right todefense in that it does not deprive accused persons of the essential means to secure theirrights.

95. The dissenting judge also did not consider that the claim pertains to theincorporation into the trial of evidence that the defense attorneys consider banned since theattorneys did not mention "with the same clarity and insistence what the evidence that hadbeen put together and evaluated in some anomalous way had been." Fayt continues, asquoted by the State, by stating that the appellant did not succeed in demonstrating that:

...the value of the presumably illegal evidence on the reasoning behind the verdictwas of such standing that, the suppression of it in some hypothetical way would have alteredthe conclusion that was reached a quo.

96. All of the foregoing leads the State to conclude that the special appeal made in


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before the events of the case is out of order.

v. Final considerations

110. In August 1995, the State remitted to the Commission a videotape containingan interview shown on Argentine channel TELEFE with Enrique Gorriarn Merlo, an officer ofthe MTP and a former member of the Ejrcito Revolucionario del Pueblo (ERP) guerrillaorganization The interview was conducted on May 17 1995 The State points out the


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organization. The interview was conducted on May 17, 1995. The State points out thestatements that Gorriarn made when he was asked about the reasons behind the attack onLa Tablada:

...what I wanted to do, and not me but all of us who participated there, was to stopthe military pressures that the government was giving into on a regular basis. We knew that

the special forces were preparing an uprising. Their purposes were to get Alfonsn to resign,to free the commanders, to put the special forces in control over the army and to make theminto a major factor of power...I did not get into the barracks because the plan was a globalone, which also included a mobilization...

111. In further reference to La Tablada, Gorriarn said that when the military cameout with tanks at 11 in the morning, he even thought that his colleagues might be aboardthem. At noon he understood that the plan had failed and that the only objective achievedhad been to stop the uprising, although "...at an extremely high cost and ultimately withfailure of the plan." He himself took responsibility for the events in these terms:

It was a collective political decision but I assume all the responsibility. I am theperson mainly responsible for it. We thought that if we were successful in seizing thebarracks in the way it was planned, people would respond to a call for mobilization todemand that the government change its economic policy and take a firm stand againstmilitary pressures.

112. The State believes that the information that emerged from this interviewconfirms that the judgment of the participants in the events of January 1989 at La Tabladaunder Law 23077 was consistent with law, because:

...the conduct described in that law fits the words of the person who publicly tookresponsibility for the events, even though that responsibility was not assessed by the justice

system in the same way because of his status as a fugitive.

113. The State also notes that the statements made by Gorriarn during the courseof the interview indicate that:

...those who participated in the events maintain a level of information regardingdetermined events that was not shared by the judicial authority responsible for explainingthose events In effect Gorriarn Merlo pointed out that the identity of a Nicaraguan


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those events. In effect, Gorriarn Merlo pointed out that the identity of a Nicaraguanmember, Jos Mendoza by name, has just now been made public. He had been, that is, hehad participated in the revolutionary struggle in Nicaragua in 1979 along with us and he hasbeen here in Argentina since 1987...he died on the morning of the 23rd in combat...Thisshows that they had information which the court authorities did not have at the time.

114. The reply then refers to the videotape that was provided by the petitioners tothe Commission and to the State. It points out that the questions raised in that tape "involveconsiderations about the matters that were not the subject of the trial in the national courtsand are issues other than those put before your Commission."

II. PROCESSING BEFORE THE COMMISSION

115. On March 4, 1993, a hearing was held with the petitioners and theCommission. On that occasion, these persons presented a summary of the complaint. OnMay 14, 1993, the same persons remitted a note containing a complaint that the prisonconditions had been unnecessarily aggravated. The letter stated that the imprisoned, bothmale and female, who were in different penitentiaries, had been grouped with commoncriminals for the purpose of minimizing their status as "political prisoners." They requestedthat the Commission visit the prisons to verify their status since they considered that thelives of these persons were in danger.

116. Other letters were received from the petitioners on August 11 and 25,

September 27 and October 4, 1993, requesting information about the status of the case andurging the Commission to reach some decision regarding its admissibility. The Commissionacknowledged receipt of the letters.

117. On October 18, 1993, the pertinent parts of the petition were sent to the Stateof Argentina requesting information within a term of 90 days. In reply to a letter sent by the

State on December 13, 1993, the Commission granted an extension of 30 days as fromJanuary 15, 1994, to furnish the information requested.

118. A second hearing was held on January 27, 1994, between the petitioners andthe State representatives.

119. On February 2, 1994, the petitioners remitted additional information about thecase in which they stated their discontent with the State's delay in responding The


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case in which they stated their discontent with the State s delay in responding. Theinformation was sent to the State on February 15, 1994.

120. A reply was received from the State on February 18, 1994, and sent to thepetitioners on March 30, 1994, whose pertinent observations were received by theCommission on May 19, 1994.

121. The petitioners' observations were sent to the State on June 13, 1994. OnSeptember 27, 1994, the petitioners sent a new letter that repeated the original complaints,and added information about the violations of the rights protected by Article 24 of theAmerican Convention. The petitioners also sent a videotape of the events at La Tablada.They contend that the tape contains important evidence showing excessive repression andmost of the other violations alleged.

122. On January 9, 1995, the State sent its reply to the observations of thepetitioners. The reply contains the official version of the events, as set out in the file.

123. The petitioners' observations to the last State reply were received on March 9,1995.

124. After an extension, the State sent its final letter about this case on August 10,1995, which also included a copy of the previously mentioned videotape of the TELEFEinterview with Enrique Gorriarn Merlo.

125. The petitioners requested a hearing during the ninetieth regular session of theCommission, which was denied by letter dated August 16, 1995.

126. On July 5, 1996, a member of the Commission and an attorney from the Officeof the Executive Secretariat met in Buenos Aires with a group of petitioners in this case. The

group was made up of attorney Martha Fernndez de Burgos, Lidia Felicetti, Beatriz Acosta,Dagmar Alvarez de Ramos, Marta S. Almirn and Marisa Rodrguez, all relatives of thepersons convicted or killed as a result of the events at La Tablada in January 1989. Thesepersons reiterated the violations charged, and made a summary of the present status of thevictims, and their jail conditions.

III. ADMISSIBILITY


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A. FORMAL REQUIREMENTS

127. Internal remedies have been completely exhausted under Argentine law, ascalled for in Article 46.1.a of the American Convention and Article 37 of the Regulations ofthe Commission. These remedies were fully exhausted with the rejection of the petitioners'

appeal by the Supreme Court of Justice of Argentina on March 17, 1992.

128. The petition was received on September 14, 1992, within the six month periodestablished in Article 46.1.b of the American Convention. The subject matter of the petitionis not pending in any other international proceeding for settlement, and the informationrequired by Article 46.1.d has been furnished by the petitioners.

129. The State has not objected to the compliance with the formal requirements foradmissibility of this case.

B. GROUNDS FOR INADMISSIBILITY

130. Article 47 of the American Convention establishes the grounds forinadmissibility of petitions or communications presented to the Commission. Clause b of thatArticle refers to complaints that do not state facts that tend to establish some violation of therights guaranteed by the American Convention.

i. Position of the State

131. According to the State, the issues at bar were fully and fairly litigated inArgentina and thus, for the Commission to review those issues would be for it to act as afourth instance.


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137. The petitioners believe that the State has failed to reply to most of the specificallegations contained in their complaint, namely:

a. Carlos Samojedny, Ivn Ruiz and Alejandro Daz were arrested while still aliveand are still disappeared.

b. Francisco Provenzano was arrested while alive and his body was later identifiedby his family members; his remains appeared to show the effects of a bomb explosion.


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c. Berta Calvo, arrested with serious wounds, later died without medical care; nomention has been made of the status of the military officer who confessed to having emptiedhis weapon into her while she was defenseless.

d. Ricardo Veiga, Roberto Snchez and Carlos Alberto Burgos were executedinside the barracks; the latter of these was seen while still alive by his family members aftermid-day on January 23, 1989.

e. Pablo Martn Ramos was arrested while alive and then summarily executed.

f. Juan Manuel Mura was in Company B of the barracks when it was destroyed bycannon fire and the roof caved in; his body has still not been identified and therefore he isincluded among the disappeared.

g. The attempts to surrender which began at 9:30 a.m. on January 23, 1989,were ignored; General Arrillaga, in charge of the operation, contradicted himself repeatedlyin court regarding this and other events.

h. The force used by the State to recapture the base was illegal, unnecessary andirrational, and included methods and weapons prohibited by the Geneva Conventions and itsProtocols, and exceeded that which is provided for in Law 23077.

i. The State ignored its jurisdictional responsibility during the evidence gatheringphase of this proceeding when illegal evidence was introduced; examples being reportsprepared by the military intelligence services and evidence seized in illegal raids. These weregiven juridical certitude by the court.

j. The prisoners were tortured physically and psychologically in the barracks aftertheir arrest.

k. Numerous violations of due process took place, examples being the crimes withwhich the defendants were charged, the surprising close of the summary stage, the 43expert testimonies and the 19 seizures made outside procedural law, as well as the so-called"parallel proceedings."

l h l f h h l b f h l


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l. The violation of the right to equality before the law.

iii. The "fourth instance formula"

138. The jurisprudence of the Commission regarding the "fourth instance formula"

has been defined repeatedly since report 39/96. [9]/ Below appear several of the grounds ofthat report which apply to this case.

139. The international protection provided by the supervisory bodies of the AmericanConvention is of a subsidiary nature. The Preamble to the American Convention is clear inthis respect, when it refers to the reinforcement or complementariety of the protectionprovided by the domestic law of the American states.

140. The rule of prior exhaustion of domestic remedies is based on the principle thata defendant State must be allowed to provide redress on its own and within the framework ofits internal legal system. The effect of this rule is "to assign to the jurisdiction of theCommission an essentially subsidiary role". [10]/

141. The nature of that role also constitutes the basis for the so-called "fourthinstance formula" applied by the Commission, consistent with the practice of the Europeanhuman rights system. [11]/ The basic premise of this formula is that the Commission cannotreview the judgments issued by the domestic courts acting within their competence and with

due judicial guarantees, unless it considers that a possible violation of the Convention isinvolved.

142. The Commission is competent to declare a petition admissible and rule on itsmerits when it portrays a claim that a domestic legal decision constitutes a disregard of theright to a fair trial, or if it appears to violate any other right guaranteed by the American

Convention. However, if it contains nothing but the allegation that the decision was wrong orunjust in itself, the petition must be dismissed under this formula. The Commission's task isto ensure the observance of the obligations undertaken by the States parties to the AmericanConvention, but it cannot serve as an appellate court to examine alleged errors of internallaw or fact that may have been committed by the domestic courts acting within their

jurisdiction. Such examination would be in order only insofar as the mistakes entailed apossible violation of any of the rights set forth in the American Convention.

143 In democratic societies where the courts function according to a system of


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143. In democratic societies, where the courts function according to a system ofpowers established by the Constitution and domestic legislation, it is for those courts toreview the matters brought before them. Where it is clear that there has been a violation ofone of the rights protected by the American Convention, then the Commission is competentto review, if domestic remedies have been exhausted.

144. The Commission has full authority to adjudicate irregularities of domesticjudicial proceedings which result in manifest violations of due process or of any of the rightsprotected by the American Convention.

145. The Commission believes that the petitioners' complaint refers to events thattend to establish

in re. compromise

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