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a) Generally

Tadic, (Appeals Chamber), Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, October 2, 1995, para. 2, 36, 40, 47, 64, 145-146: Dusko Tadic challenged the jurisdiction and the lawfulness of the existence of the ICTY on three different grounds: (1) illegal foundation of the ICTY; (2) wrongful primacy of the ICTY over national courts; and (3) lack of subject-matter jurisdiction.  The Appeals Chamber found that the ability of a judicial or arbitral tribunal “to determine its own jurisdiction” is “a major part, of [its] incidental or inherent jurisdiction.”  The Appeals Chamber held that the establishment of the ICTY fell squarely within the powers of the Security Council under Article 41 of the United Nations Charter, that the ICTY had been lawfully established as a measure under Chapter VII of the Charter and that the ICTY had been “established by law.”  The Appeals Chamber determined that there had been a threat to the peace in the former Yugoslavia justifying the Security Council's invocation of Chapter VII of the Charter and, further, that Article 41 of Chapter VII served as an appropriate legal basis for establishing an international criminal tribunal.  The Appeals Chamber dismissed the second ground of Tadic’s appeal as ill-founded and held that the tribunal had subject-matter jurisdiction over the case at hand.

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February 2004