Delegation of authority to non-judicial bodies

Notion(s) Filing Case
Decision on Modified Provisional Release - 10.03.2006 HARADINAJ et al.

2.         Paras 64-76:  the Appeals Chamber recognised that the delegation of authority to non-judicial entities is a necessary function of the Tribunal (paras. 64-65).  It identified the principles allowing delegation to non-judicial authorities as based in Tribunal-related Security Council Resolutions (para. 66), the inherent power of the Tribunal (para. 67) and the Statute of the Tribunal (paras 68-75).   

3.         Paras 76-80:  noting that the Statute and the Rules only discuss delegation to States, the Appeals Chamber addressed whether the Tribunal could delegate authority to UNMIK, a              non-State entity (para. 76).  The Appeals Chamber found: “In sum, there is nothing in UNMIK’s make-up or character that would prevent the Tribunal from delegating power to it, but the lack of explicit authorization suggests that the Tribunal should be cautious in such delegation and look at each case on the merits.” (para. 80).

4.         Paras 81-92:  the Appeals Chamber then addressed whether the Tribunal could delegate to UNMIK the specific authority to vary the conditions of the Accused’s provisional release pertaining to participation in political activities.  The Appeals Chamber considered four factors and determined that such delegation is permissible:

First, the decision-making entrusted to UNMIK is not central to the judicial process. Second, UNMIK does not have absolute discretion; the Trial Chamber has established certain criteria that it must follow in making its decision. Third, the Trial Chamber retains supervisory authority over UNMIK and the Accused. Fourth, there are significant practical advantages to letting UNMIK take day-to-day decisions about the Accused’s political activities.[1]                                                      

5.         In their joint dissenting opinion, Judge Shahabuddeen and Judge Schomburg argued that delegating to UNMIK the authority to modify the conditions of the Accused’s provisional release allows UNMIK unreasonably broad discretion, exceeds the Trial Chamber’s authority and is ultra vires (paras 6-10 of the joint dissenting opinion).  They also argued that the delegation was ultra vires because it required that UNMIK make judicial decisions which cannot be delegated to a non-judicial body (paras 11-16 of the joint dissenting opinion). 


[1] Decision, para. 81. All of those aspects have been dealt in detail at paras 82-92.

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ICTR Rule Rule 65 ICTY Rule Rule 65