Inherent jurisdiction

Notion(s) Filing Case
Decision on Leave to Appeal - 11.09.2008 NTAGERURA André
(ICTR-99-46-A28)

Following his acquittal, Ntagerura remained under the authority of the Tribunal pending relocation to a third country. He filed a motion before the President of the Tribunal in which he claimed that Canada ignored the Registrar’s requests for his relocation to that country, and requested that the President of the Tribunal order Canada to comply with these requests and notify the United Nations Security Council of Canada’s refusal to implement them, if it still failed to do so. The President denied the motion in part, and referred the matter to a Trial Chamber for consideration under Article 28 of the Statute of the Tribunal. The Trial Chamber denied the motion in its entirety. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

Ntagerura was acquitted by the Trial Chamber in 2004, and this decision was subsequently affirmed on appeal in July 2006. However, Ntagerura has since remained under the authority of the Tribunal pending relocation to a third country. He has consequently seized the Registrar and the President of the Tribunal with requests for assistance in this regard. These requests were denied and the Ntagerura’s request for assistance of the MemberState was referred by the President to the Trial Chamber which then denied it as well. In these circumstances, the Appeals Chamber allowed Ntagerura’s request to seek review of the decisions rendered by the President and the Trial Chamber.

12. […] While neither the Statute nor the Rules provide for such appeals, the Appeals Chamber has inherent jurisdiction over the enforcement of its orders and any decisions rendered as a consequence thereof. […]

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Notion(s) Filing Case
Decision on Appeals of Further Decision on Félicien Kabuga's Fitness to Stand Trial - 07.08.2023 KABUGA Félicien
(MICT-13-38-AR80.3)

68. […] [T]he Appeals Chamber finds that neither the Statute nor the jurisprudence of the Mechanism and its predecessor tribunals allow for the conduct of an “alternative finding procedure”, as defined by the Trial Chamber, in lieu of a trial. […] The Appeals Chamber observes that treaty provisions and state legislative practice, while of significance, are not necessarily determinative of the scope of the Mechanism’s jurisdiction. It is the Statute, as the constitutive instrument of the Mechanism, that defines the scope and limits of its mandate and can only be amended or derogated by means of a United Nations Security Council resolution.[1]

69. The Appeals Chamber is further not persuaded by the Prosecution’s argument that the “alternative finding procedure” falls within the Mechanism’s inherent powers to issue such rulings as necessary to exercise its express jurisdiction.[2] As recalled above, the Statute, as the constitutive instrument of the Mechanism, defines the scope and limits of the Mechanism’s substantive jurisdiction as set out in Articles 1 to 7 of the ICTR Statute.[3] As with the statutes of its predecessor tribunals, the Appeals Chamber recognizes that the Statute of the Mechanism “is not and does not purport to be […] a meticulously detailed code providing explicitly for every possible scenario and every solution, thereto” and that it sets out in general terms the jurisdictional framework within which the Mechanism has been mandated to operate.[4] Included in this framework is the inherent jurisdiction to ensure that its exercise of judicial functions is safeguarded.[5] In this regard, it has been indeed recognized that judges are not limited strictly and narrowly to the text of the Rules in carrying out their mandateand have the inherent authority to render orders that are reasonably related to the task before them and that derives automatically from the exercise of the judicial function.[6]

70. The Appeals Chamber notes that, in support of its submission, the Prosecution points to the authority of the Mechanism’s predecessor tribunals in adjudicating joint criminal enterprise liability and allegations of contempt, despite the fact that the two notions were not expressly prescribed in their respective statutes and/or rules of procedure and evidence.[7] The Appeals Chamber recalls, however, that the authority to exercise jurisdiction over joint criminal enterprise liability falls within the ICTR’s substantive jurisdiction, prescribed under Article 6(1) of the ICTR Statute, to hold individuals criminally responsible for “committing” crimes referred to in Articles 2 to 4 of the ICTR Statute.[8] As for the authority to exercise jurisdiction over allegations of contempt, the Appeals Chamber recalls that the inherent jurisdiction of the ad hoc tribunals in this respect is derived from their judicial function to ensure that the exercise of jurisdiction, which was expressly given to them by their respective statutes, was not frustrated and that their basic judicial functions were safeguarded.[9]

71. As explained above, the Statute does not expressly give the Mechanism jurisdiction to conduct proceedings other than trial, appellate, and review proceedings.[10] In accordance with the principle ubi lex voluit dixit, had the drafters of the Statute intended to vest the Mechanism with the power to conduct proceedings similar to trials, they would have expressly provided for it. The Appeals Chamber considers that, in the case of an international criminal tribunal, this is not a power that can be regarded as inherent to its function.[11]

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[1] Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-AR73.4, Decision on Karadžić’s Appeal of Trial Chamber’s Decision on Alleged Holbrooke Agreement, 12 October 2009 (“Karadžić Decision 12 October 2009”), paras. 34-36 (concerning the statute of the ICTY).

[2] See Prosecution Response, para. 12.

[3] Article 1(1) of the Statute. See also Karadžić Decision 12 October 2009, para. 34.

[4] Prosecutor v. Milan Milutinović et al., Case No. IT-99-37-AR72, Decision on Dragoljub Ojdanić’s Motion Challenging Jurisdiction – Joint Criminal Enterprise, 21 May 2003 (“Milutinović et al. Decision of 21 May 2003”), para. 18.

[5] Prosecutor v. Zlatko Aleksovski, Case No. IT-95-14/1-AR77, Judgement on Appeal by Anto Nobilo Against Finding of Contempt, 30 May 2001 (“Nobilo Contempt Appeal Judgement”), para. 30.

[6] See Prosecutor v. Radovan Stanković, Case No. IT-96-23/2-AR11bis.1, Decision on Rule 11bis Referral, 1 September 2005 (“Stanković Decision of 1 September 2005”), para. 51, nn. 97, 98 (stating that the ICTY’s inherent authority includes, for instance, the power to examine its own jurisdiction, to admit evidence on appeal even if it was available at trial in cases where its exclusion would lead to a miscarriage of justice, and to hold persons in contempt to ensure the fairness of the proceedings and to provide for the proper administration of justice), referring to Nobilo Contempt Appeal Judgement, para. 30, Prosecutor v. Goran Jelisić, Case No. IT-95-10-A, Decision on Request to Admit Additional Evidence, 15 November 2000, Prosecutor v. Duško Tadić, Case No. IT-94-1-AR72, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 14.

[7] See Prosecution Response, para. 12.

[8] See Milutinović et al. Decision of 21 May 2003, paras. 18-20 (concerning equivalent Article 7(1) of the Statute of the ICTY). See also The Prosecutor v. Elizaphan Ntakirutimana and Gérard Ntakirutimana, Case Nos. ICTR-96-10-A & ICTR-96-17-A, Judgement, 13 December 2004, paras. 461, 462, 468 (wherein the Appeals Chamber of the ICTR noted that: “while joint criminal enterprise liability is firmly established in the jurisprudence of the ICTY this is only the second ICTR case in which the Appeals Chamber has been called upon to address this issue. Given the fact that both the ICTY and the ICTR have mirror articles identifying the modes of liability by which an individual can incur criminal responsibility, the Appeals Chamber is satisfied that the jurisprudence of the ICTY should be applied to the interpretation of Article 6(1) of the ICTR Statute.”); Tadić Appeal Judgement, paras. 186-194, 226.

[9] See Prosecutor v. Duško Tadić, Case No. IT-94-1-A-R77, Judgement on Allegations of Contempt Against Prior Counsel, Milan Vujin, 31 January 2000, paras. 13, 18.

[10] See Articles 18, 23, and 24 of the Statute.

[11] Cf. Blaškić Decision of 29 October 1997, para. 25 (concerning the power of the ICTY to issue subpoenas to States, which is not expressly provided in its statute).

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