Differences between the Canadian and American Legal System

 

Coming to law school in the United States, as a born and raised Canadian, left for a huge gap in practical knowledge of the law. Growing up in Canada, you have the Charter of Rights and Freedoms[i] you learn about, and you automatically assume and know that everything that happens in one part of the country, is a reflection of what would happen on the opposite coast.

 

Firstly, learning the United States Constitution was a whirlwind, the most difficult part being that reading it for the first time when you are twenty-three years old, you cannot possibly see how some of the articles or amendments to the Constitution that can consist of twenty words, founded thousands of interpretations that make no sense, on first glance – if you do not know the ways different judges interpret the constitution (originalists, the living constitution, etc.).

 

But these things you can overcome and actually translate very well between Canada and America. It is in between the lines, the little nitpicky things that really take you by surprise. After learning the foundations of law in 1L, going back to Canada to practice with a firm in Toronto was easy enough – but it was the little things that you can get stuck behind on. Calling an appellate brief in Canada a “Factum,” aside, here are three things that are different between the United States Legal System and the Canadian Legal System.

 

  1. Political System (Federalism)

 

While both the United States and Canada have successful federal government involvement, the parliamentary confederacy of Canada has structured the court system very differently – which we will discuss shortly.

 

The most important distinction between the political influences is that Canada as one singular federal criminal code.[ii] Canada uses their federalism to have a universal criminal code that keeps a consistent blanket of laws to govern Canada. This probably helps the Canadian legal system function because its realistically easier in a country that’s population is about 35 million[iii], compared to America’s 326 million[iv]. It also was in the heart of the creation of the United States of America that States would retain some-sort of independence, something that was compromised in the creation of Canada.

 

The universal criminal code in Canada doesn’t apply necessarily to the civil code, as the provinces and territories have their own rules when it comes to that, but semantics.

 

  1. Structure of the Court System

 

Naturally, from having such different ways of binding the country by governing laws, the way the courts are set up are bound to differ. While the structure in the United States can be confusing because of basic jurisdictional questions between the States and Federal courts – who could essentially hear every type of cause – in Canada there is a more unified structure the mimics a pyramid structure. In Canada, each provincial trial court will hear every minor claim – there is rare venue shopping – to ensure that the application of the laws in that province adhere to a standard of uniformity.[v] There are Courts of Justices that will hear the minor civil and criminal issues, while the Superior courts of each province will deal with the most serious offenses. Each province has their trial courts, a Court of Appeal (not Appeals) that is designed “to correct simple errors” that happen at the lower levels.[vi] And while Canada has created a “‘federal’ court system, these federal courts of limited jurisdiction remain far less important than the courts in the basic [provincial] structure outlined above.”[vii] This simplistic structure of the Canadian courts leaves for the Supreme Court of Canada to be far more influential in the provinces, giving them the ability to promote federalism amongst the provinces; further promoting uniformity amongst the governing laws.[viii]

 

Whereas, in the United States of America, there are two separate and functioning federal and state court systems, that often intertwine with the cases they hear. Each State has the ability to enact their own type of state legal systems, and there will always be clashes between federalism and state powers, the United States has figured out how to successfully function within both systems and with their overlapping jurisdictions.

 

  1. Foreign Jurisprudence

 

Finally, it should be noted that the United States rarely relies on the trends and case precedent on matters more developed in other countries to make decisions, and their opinion on the matter is often outspoken by various influential persons in the judiciary (i.e. Scalia). While the Honourable Justice Antonin Scalia once said that he “fear[s] the courts’ use of foreign law in interpreting the Constitution will continue at an accelerated pace,”[ix] it is the opposite view in countries like Canada. Canada is quick to look to England or the United States when it comes to filling gaps in precedence.[x] While Justice Scalia has used his platform as Supreme Court Judge in numerous cases – most famously in, Romper v. Simmons and Lawrence v. Texas – to air his grievances against reliance on foreign jurisprudence, the Supreme Court of Canada has actually relied on the Supreme Court of the United States to decide a case where no precedent existed in Canada.[xi]

 

This list remains far from complete. While this is three of many differences between the Canadian and American legal systems, there are many facial and deeply seeding differences between the countries. However, this does not to mean there are not similarities between the systems, it just means that both systems – difference and similar – are both highly function systems of two very prestigious judiciaries.

 

While it may seem hard, conceptually, to translate what is learned in one country’s law school into another country’s legal industry, the bottom line it is not. Yes, you learn from different sets of systematic governing laws, or different terminology what it comes down to is that the law is the law. Where there are lawyers, judges, and other legal professionals there will always be the ability to learn and adapt to any legal system in any country.

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11

[ii] PETER MCCORMICK, CANADA’S COURTS 24 (1994).

[iii] Government of Canada Statistics Canada, Canada at a Glance 2017 Population Canada at a Glance 2017 Population Government of Canada, Statistics Canada (2017), https://www.statcan.gc.ca/pub/12-581-x/2017000/pop-eng.htm (last visited Dec 22, 2017).

[iv] U.S. and World Population Clock, Population Clock, https://www.census.gov/popclock/ (last visited Dec 23, 2017).

[v] McCormick, supra note ii, at 23.

[vi] Id.

[vii] Mark C. Miller, A Comparison of the Judicial Role in the United States and in Canada, 22 Suffolk Transnat’l L. Rev. 1, 3 (1998)

[viii] Id. at 4.

[ix] MARY FLOOD, Copyright 2008 Houston Chronicle, Scalia criticizes courts citing foreign trends Houston Chronicle (2008), http://www.chron.com/news/houston-texas/article/Scalia-criticizes-courts-citing-foreign-trends-1766787.php (last visited Dec 23, 2017).

[x] The Use of Foreign Jurisprudence by the Supreme Court, TheCourt.ca (2008), http://www.thecourt.ca/714/ (last visited Dec 23, 2017).

[xi] United Food and Commercial Workers, Local 1518 (UFCW) v KMart Canada Ltd[1999] 2 SCR 1083.

 

Amexit? Can Trump leave NAFTA & What Would Happen if he did

Disclaimer: The views and opinions expressed in this article are those of the author's and do not necessarily reflect the position of JLIA, Penn State Law, School of International Affairs, or Pennsylvania State University.

 

On June 23, 2016, the United Kingdom (“UK”) voted to leave the European Union (“EU”), the body that has been the definition of prestige in the realm of international treaties.[i] This triggered hysteria, rightfully so, because while the rest of the world were not a part of this treaty, it was so intertwined with any country’s relation Europe that it left countries like America and Canada wondering what it meant for them. But while “Brexit” has caused such uncertainties for countries that are not party to the EU, what would happen if a country like America were to withdraw from one of their biggest treaties? Well, this speculation might have to become reality if President Trump ends up getting his way and leaving the North American Free Trade Agreement.

 

Before Donald Trump took office, he consistently spewed during Presidential Debates that “NAFTA is the worst trade deal maybe ever signed anywhere, but certainly ever signed in this country.”[ii] While Trump argues that NAFTA has only ever hindered the US, would it in fact be as devastating to America for them to leave NAFTA as it is for the UK to leave “EU”? International Trade expert, and Penn State Law faculty member, Takis Tridimas argues otherwise.[iii] Tridimas argues that, while he believes it is unlikely that the US will withdraw from NAFTA, in the event of NAFTA Article 2205[iv] being triggered by the US, he vehemently argues that it will not have such an impact of that of Brexit.[v] This leads Tridimas to mentioning that where Brexit solely uses the EU as the basis of negotiations, and how to readdress issues that are up in the air with the UK leaving certain mechnisms of the EU, the United States comes into NAFTA and withdrawal of NAFTA needing their position to encompass the United States Constitution.[vi]

 

This draws the attention to another issue with President Trump’s solo campaign to withdraw from NAFTA, does he know the Commerce Clause exists?[vii] Under the Constitutions Commerce Clause, Trump cannot terminate NAFTA, nor could he have even renegotiated it without a “yes” from Congress.[viii] While we can debate whether or not the President’s knowledge of the Constitution is substantial or not, or if America leaving NAFTA will be as detrimental of Brexit has been in the EU, the question remains: What would happen if America did leave NAFTA?

 

Well there’s a whole slew of things. Firstly, in my opinion, the dispute resolution mechanism of NAFTA would disappear first and fast.[ix] This system of dispute resolution has been rarely used, with the United States, Canada and Mexico all being members of the World Trade Organization (“WTO”), NAFTA’s Chapter 20 and WTO’s Dispute Settlement Understanding (“DSU”) are often venue shopped between these three countries, with preference being given to the WTO’s dispute resolution system.[x]

 

Secondly, Trump would not hesitate to reinstate various tariffs on Mexico, likely using the WTO’s maximum tariff percentage, as it would be the only binding material on free trade that America would need to adhere to foregoing NAFTA.

 

Thirdly, the most interesting events to succeed the termination of NAFTA would to examine if the United States, Canada and Mexico either multilaterally institute a new agreement or if the countries would forego one another and decide to bilaterally create agreements. With the uncertainty of Congress today, it would not be surprising if Canada and Mexico decided that they would institute a new trade agreement between the two of them. This would likely be followed with new bilateral agreements between Canada and the US and the US and Mexico. Wouldn’t this just unnecessarily complicate matters of free trade between the three countries? To have terminated one simple, all-encompassing, agreement because of a President’s pride (or the Republican Congress’s pride) be replaced with two separate binding agreements, that must also adhere to the global trade organizations guidelines; where’s the common sense in that?

 

Whether the United States decides to leave NAFTA or not is something that only time will be able to tell and we may never see the hypothetical consequences; yet, it could be worse … just look at the failing negotiations of Brexit.

 

About the Author: Pooja Toor is a 2L at Penn State Law.


 

[i] Alex Hunt & Brian Wheeler, Brexit: All you need to know about the UK leaving the EU BBC News (2017), http://www.bbc.com/news/uk-politics-32810887 (last visited Nov 9, 2017).

[ii] Cooper Allen, 2016 general election debate schedule USA Today (2016), https://www.usatoday.com/story/news/politics/onpolitics/2015/09/23/2016-general-election-debate-schedule/81238502/ (last visited Nov 15, 2017).

[iii] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[iv] North American Free Trade Agreement, Can.-Mex.-U.S., Art. 2205, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[v] Pooja Toor & Takis Tridimas, Personal Interview of Takis Tridimas (2017).

[vi] Id.

[vii] U. S. Const. art. I, § 8, cl. 3

[viii] Id.

[ix] North American Free Trade Agreement, Can.-Mex.-U.S., Ch. 20, Dec. 17, 1992, 32 I.L.M. 289 (1993).

[x] R. Leal-Arcas, Comparative Analysis of NAFTA’s Chapter 20 and the WTO’s Dispute Settlement Understanding, 8 in Transnational Dispute Management, www.transnational-dispute-management.com (2011)

The Fight for the Right to Be Let Alone: A New Frontier in Intersex Rights

 

“The makers of the Constitution conferred the most comprehensive of rights and the right most valued by all civilized men- the right to be let alone.”

  • Justice Louis D. Brandeis

 

Intersex rights are the new frontier of LGBT law. In an ever-progressing field of law, advocacy groups are always looking for the next civil rights violation to tackle. Making its way into the spotlight are issues involving the intersex community. An intersex person is someone whose sex characteristics don’t fall along the binary, that is, either presenting completely male or completely female.[1] Intersex is an all-encompassing term for all conditions that fall under this umbrella. Sometimes the characteristics are purely hormonal or internal, and the person doesn’t know they are intersex until later in life, and sometimes the condition is clear from the ambiguous genitalia.[2] Intersex advocacy has most often centered on the latter.

Generally, advocacy has been focused on raising awareness about the human rights issues involved in intersex surgeries, particularly for infants. When an intersex infant is born with ambiguous genitalia, the parents and the doctor have to make a decision regarding the care for the child. The parents must choose whether or not to have gender-affirming surgery on their infant, during which the doctor would remove the other genitalia. Most often, this means removing penile tissue from what would be the clitoris on a female, and making sure the vaginal opening is functional. However, when making the decision of which gender they are affirming, surgeons generally rely on what the simplest procedure would be. This, more often than not, is removing male organs in lieu of female ones, since this is a more simple procedure surgically. However, no genetic testing is usually done. This means that the decision of which gender to raise the child doesn’t rely on hormone levels, clinical research or any reliable data to ensure that the chosen gender is likely to be the one that the child identifies as.[3] The consequences, therefore, are a higher number of these children experience Gender Dysphoria.[4] While only 1% of the general population experiences Gender Dysphoria, up to 10% of these children will experience it.

This clinical model of remedying the ambiguous genitalia before the child has any memory of it is still based in large part on the failed experiment of John Money, a clinical psychiatrist focusing on a nature versus nurture theory for gender identity.[5] Dr. Money was a sexologist, and his most famous experiment involved a pair of twins who were both born genetically male. After a circumcision accident burnt the entire penis off one of the twins, their parents brought them to Money. Based on his work with hermaphrodites,[6] Money had a theory that up to the age of two, the parents could choose what gender to raise their child as, and how they were raised would determine their gender rather than their physical characteristics. He called this the “gender gate” and thought that these twins presented a perfect opportunity to test his theory on a non-intersex person.[7]

He began publishing about his success in the case when the twins were five, and it was instantly heralded as a medical breakthrough. However, Brenda (the twin that was being raised as a girl) was an intensely unhappy child. She presented very masculine and liked things that were traditionally liked by boys, such as sports and hated feminine things, like dresses or dolls. She also hated going to see Money, whose therapy continued to focus on “teaching” Brenda how to be a woman. This involved showing her naked pictures of herself and her brother to show the differences in anatomy, showing her childbirth videos so she knew what her intention was to be in later life as a woman, and encouraging her to get a vaginoplasty (where they would construct a more anatomically correct vaginal opening). Despite this intensive therapy, Brenda never identified as female and became suicidal. When she was thirteen, her parents relented and told her that she was born male, and had been named David. Immediately, Brenda began living as David, and received a settlement from the doctor who botched his circumcision, which he used to for reconstructive genitoplasty to create a new penis. However, he never fully recovered mentally, and ended up committing suicide at the age of 38.[8] His brother, Brian, angry about all the attention David had received growing up, turned to drugs and died of a drug overdose.[9]

Despite the absolutely catastrophic results of this experiment, Money’s theory is still the basis for intersex surgeries today. Doctors feel that if a child is born with intersex characteristics, it is better to operate when they are infants and raise them as the gender that was chosen for them, usually female.  However, these children have to undergo multiple surgeries over the course of their lives, which usually involves a clitoridectomy.[10] This much trauma to any area grows scar tissue, which lessens sensitivity. Because the clitoris is a vital component to sexual pleasure for a woman, this lessened sensitivity leads to sexual dysfunction in a majority of the people who undergo these surgeries. Several studies conducted support this conclusion.[11]In a leading study of women that had undergone these surgeries, all of them that were sexually active had sexual difficulties.[12] 40% of the sexually active women had never achieved an orgasm.[13]

These results indicate that these surgeries should not be standard procedure for infants that present with intersex conditions. However, no firm guidelines for the treatment of intersex conditions existed until recently. The guidance from professional organizations that is used by doctors to guide medical choices (and is used by lawyers for the medical standards needed in medical malpractice cases) were neutral on the topic of when to operate on these children. The Endocrine Society says that while surgery can correct ambiguous genitalia, parents may choose to delay surgery until the child is old enough to help make the decision, but offers no guidance as to if surgery is ever appropriate in infancy.[14] The CARES Foundation, a non-profit that advocates for people with Congenital Adrenal Hyperplasia (one of the most common intersex conditions that presents with ambiguous genitalia) recommends that surgery be postponed until the child is in adolescence (unless there is a medical necessity) so they can be involved in the decision-making and so that the parents are making informed decisions.[15] An organization specializing in rare diseases agrees that unless there is medical necessity, surgery should be postponed until the child is old enough to have a say in their surgery.[16]

The United Nations Committee Against Torture issued a special report in 2013 denouncing these surgeries, saying that abuse in health care settings should be stopped, and that the surgeries performed on intersex children is done without their informed consent, and is therefore tantamount to genital mutilation.[17] While the United States has not taken proactive steps to curtail these surgeries, other countries have. Germany, Switzerland, Australia, Chile and Malta are among some countries that have outlawed these surgeries on children without their consent. InterACT, the United State’s first legal advocacy group focusing on the issues faced by these children has advocated tirelessly since their founding for a policy change in the treatment of intersex infants, citing issues of informed consent and medical ethics as a reason for the change. They partnered with the Palm Center and produced a guidance letter written by three former U.S. Surgeons General, urging the United States to stop this procedure because there is no data proving that growing up with abnormal genitalia has any negative psychological effects on children. [18] Under the Obama administration, on October 26, National Intersex Awareness Day, the Department of State released a statement recognizing the detrimental effects of these surgeries, and affirming a general commitment to supporting bodily autonomy for all people, even though they didn’t specifically condemn the use of these surgeries.[19]

Despite the efforts of advocates, the American Medical Association hadn’t heard a resolution regarding the regulation of surgeries on intersex infants until this past November at their general meeting. Previously, when faced with adopting a policy, the Board of Trustees had deferred the passing of a resolution in favor of a more generalized approach, citing other opinions about pediatric care generally regarding decisions about gender and sexual health. These mainly included encouraging doctors to include the child in the decision whenever possible, and to delay any procedures that weren’t medically necessary until the child was old enough to be involved in the decision-making. However, without an express resolution, care providers have no clear standard of care for which to adhere to, which has been the downfall of any litigation that was attempted to stop these surgeries judicially. But this year, compelled by pressure from medical student associations, intersex advocates and LGBT civil rights groups, the AMA adopted a resolution stating:

That our American Medical Association support optimal management of DSD[20] through individualized, multidisciplinary care that: (1) seeks to foster the well-being of the child and the adult he or she will become; (2) respects the rights of the patient to participate in decisions and, except when life-threatening circumstances require emergency intervention, defers medical or surgical intervention until the child is able to participate in decision making; and (3) provides psychosocial support to promote patient and family well-being.[21]

This resolution is a big step forward for intersex advocates fighting to eradicate these surgeries. The American Medical Association sets the basic standards of care that physicians follow. When the standard of care is not met, the standard for a medical malpractice claim is reached. While intersex advocates have used arguments of fraud statutes or female genital mutilation laws as well, medical malpractice has the strongest teeth in bringing an end to these surgeries through litigation. With the new adoption of this standard, the medical community is taking a stance for these children.

The battle for equality is hard fought, and change comes slowly. But with the tireless efforts of advocates, the United States is working on joining the charge to end these surgeries globally, and restore autonomy and dignity to all people, regardless of how they are born.

 

About the Author: Kylee Reynolds is a 3L at Penn State Law.


 

[1] What is Intersex?, Intersex Society of North America (2008) http://www.isna.org/faq/what_is_intersex

[2] Id.

[3] Medically Unnecessary Surgeries on Intersex Children in the U.S., Human Rights Watch (2017) https://www.hrw.org/report/2017/07/25/i-want-be-nature-made-me/medically-unnecessary-surgeries-intersex-children-us

[4] Ranna Parekh, What is Gender Dysphoria?, American Psychiatric Association (February 2016) https://www.psychiatry.org/patients-families/gender-dysphoria/what-is-gender-dysphoria

[5] Dr. Money and the Boy With No Penis, British Broadcasting Company (September 14, 2014) http://www.bbc.co.uk/sn/tvradio/programmes/horizon/dr_money_prog_summary.shtml

[6] This is the former name for people with intersex characteristics

[7] Supra at 5

[8] Elaine Woo, David Reimer, 38: After Botched Surgery, He Was Raised as a Girl in Gender Experiment, Los Angeles Times (May 13, 2004) http://articles.latimes.com/2004/may/13/local/me-reimer13

[9] John Calapinto, Gender Gap, Slate (June 3, 2004) http://www.slate.com/arts/2017/12/looking-back-at-love-actuallys-workplace-harassment.html

[10] The removal of the clitoral tissue

[11] See: Sarah Creighton & Catherine Minto, Managing Intersex, PubMed Central, (2001); Naomi S. Crouch et al., Sexual Function and Genital Sensitivity Following Feminizing Genitoplasty for Congenital Adrenal Hyperplasia, Jour. of Urology (February 2008); Maria New & Alan Parsa, Review: Steroid 21-Hydroxylase Deficiency in Congenital Adrenal Hyperplasia, Jour. of Steroid Biochemistry and Molecular Biology (January 2017)

[12] Catherine Minto et al., The Effect of Clitoral Surgery on Sexual Outcome Individuals Who Have Intersex Conditions with Ambiguous Genitalia: a Cross-Sectional Study, Lancet (April 2003)

[13] Id.

[14] Phyllis W, Speiser et al., Congenital Adrenal Hyperplasia Due to Steroid 21-Hydroxylase Deficiency: An Endocrine Society Clinical Practice Guideline, Jour. Of Clinical Endocrinology and Metabolism (September 1, 2010)

[15] What We Do, CARES Foundation (2012) https://www.caresfoundation.org/what-we-do/

[16] Phyllis W. Speiser et al., Congenital Adrenal Hyperplasia, National Organization for Rare Disorders (2017) https://rarediseases.org/rare-diseases/congenital-adrenal-hyperplasia

[17] G.A. Res. 13/10577 ¶ 76 (Feb 1, 2013).

[18] M. Joycelyn Elders et al., Re-Thinking Genital Surgeries on Intersex Infants, Palm Center (June 2017) http://www.palmcenter.org/wp-content/uploads/2017/06/Re-Thinking-Genital-Surgeries-1.pdf

[19] Press Statement, Department of State, In Recognition of Intersex Awareness Day (October 26, 2016) (on file with department)

[20] “Disorders of Sexual Development” (another term for people with intersex conditions)

[21] Patrice M. Harris, Supporting Autonomy for Patients with Differences of Sex Development (DSD), American Medical Association (2017)

 

[Series] Prosecuting War Crimes: Progress on Prosecuting Sexual Violence Crimes

The Bosnian conflict is best understood by looking back in history to the founding of Yugoslavia. In 1943, the six republics of Serbia, Montenegro, Slovenia, Macedonia, and Bosnia-Herzegovina came together under a banner of “brotherhood and unity.”[1] This was an effort to resist ethnic, national, and religious loyalties that the Axis invaders of World War 2 wished to exploit. The dream of “brotherhood and unity” lasted five decades, the decline came with the rise of Serbian politician Slobodan Milosevic, who pushed a Serbian nationalist agenda aimed at centralizing power. Milosevic was able to rise to power due to the economic decline of Yugoslavia, and his ability to blame ethnic outsiders and pushing for Serbian power only served to consolidate his position. Tensions boiled over, and in April, 1992 war broke out. Three ethnic groups were in opposition of each other: the Bosnian-Serbs, backed my Milosevic, Bosnian-Croats, backed by then Croatian president, Frando Tudjman, and Bosnian Muslims known as Bosniaks.[2] It was in this war that lasted four years that the world held witness to some of the most unspeakable war crimes of the latter half of the 20th century.

It was during this conflict that the world bore witness in near live-cast fashion, to the use of rape as a weapon of war. Historians and ordinary citizens alike watched in horror as the calculated use of sexual violence was used to commit genocide through ethnic cleansing. Attempts at cleansing religious and ethnic groups were made by either impregnating or shaming the women of various populations. Special “rape camps” were extremely common during the conflict, within which the International Criminal Tribunal for the former Yugoslavia (ICTY) estimates an estimated 20,000 to 50,000 women and girls were raped, forcibly impregnated and given diseases. Many were Bosniaks or Bosnian Muslims, ranging from six years of age to seventy years of age.

The consequences of these atrocities were far reaching and affect women in the area to this day. Many of the women were forcibly impregnated and released only after they passed the threshold where abortion was possible. Long-term depression, social phobia, PTSD, and sexual disfunctions are common. Some became infertile as a result of the horrible mistreatment they suffered during the conflict.[3]

In order to prosecute these and other war crimes committed during the conflict, the United Nations Security Council (UNSC) exercised powers vested by the United Nations Charter to establish the International Criminal Tribunal for the former Yugoslavia (ICTY).[4] The birth of the ICTY seemed in many respects a throwback to the Nuremburg Tribunals, however there is a stark difference between the two that solidify the ICTY as an independent precedent for international criminal prosecution. The ICTY was established not in agreement between nations that had jurisdiction over the crimes as in the case of Nuremburg, but by the independent action of the UNSC. This was an important step, because it put forth the idea that the UNSC would not sit idly by and watch these atrocities, but would utilize powers under Chapter VII of the United Nations Charter and seek to “maintain or restore international peace and security.”[5]

As previously mentioned, one of the most important cases that the ICTY tried was against Dusko Tadic, a Bosnian Serb commander of paramilitary forces charged with genocide, gross transgressions against the Fourth Geneva Convention, and various crimes against humanity.[6] Tadic was the first defendant on trial, and as a result would be the precedent against which all other trials would be measured. Tadic’s trial was not only a test of the ICTY’s efficacy, but the power of the UNSC to establish ad hoc tribunals in response to international crises.[7]

The tribunal had to defend against two main points in Mr. Tadic’s trial: first, that the UNSC exceeded its powers under Chapter VII and second, that the tribunal was an illegal body because it was not established “by law.”[8]

To the first issue, the establishment of a tribunal was necessary and available under Chapter VII which states that the UNSC can “decide what measures shall be taken in order to…maintain or restore international peace and security.” The breakdown of the former state of Yugoslavia and the ensuing violence and atrocities were a clear candidate for Chapter VII to apply. As per the chapter, the UNSC had the authority to use non-military means to implement decisions, these means include but are not limited economic and diplomatic sanctions.[9] Further, the UNSC has the ability to create any “subsidiary organs necessary for the performance of its functions.”[10]

Tadic’s second point of contention was the more difficult of the two because it claimed that the tribunal had no right to prosecute due to the internationally recognized right of individuals to be prosecuted by tribunals established by law. Mr. Tadic contended that as a tribunal established by a UNSC resolution, it would be a violation of his civil, political, and human rights. The tribunal is not encumbered by this issue because tribunals established by law applied to national and not international court, due to the lack of an international legislature. Further, it was established that so long as the tribunal conferred all relevant international human rights and was grounded in a rule of law, there was no violation. Beyond this, the tribunal could be considered established “by law” because the United Nations charter conferred a legal right to the UNSC to establish tribunals.

The authority of the UNSC to create tribunals firmly in place, the ICTY has become a precedent in prosecuting international crimes. The ICTY has shown the world that an individual’s position in government means nothing and that leaders suspected of crimes against humanity will be prosecuted. To date, 161 individuals accused of genocide, crimes against humanity, and complicity with war crimes have been indicted.[11] 83 individuals including Mr. Tadic have been sentenced, while others have died in custody. Moving forward, the national judiciaries of the Bosnian Herzegovinian federation, Serbian, and Croatian governments have begun to prosecute war criminals independently of the ICTY.

 

About the Author: Hojae Chung is a 2L at Penn State Law.

* This is the first part of a series on the progress on prosecution of war crimes.


 

[1] Tim Judah, Yugoslavia 1918-2003, BBC History http://www.bbc.co.uk/history/worldwars/wwone/yugoslavia_01.shtml#three

[2] Larissa Petola, Rape as a tool of War and Genocide: An Examination of its Historical and Contemporary Tactical Uses, Effects on Victims and Societies and Psychological Explanations, https://www.cmc.edu/sites/default/files/humanrights/Rape%20as%20a%20tool%20of%20war.pdf

[3] Mladen Loncar, Vesna Medved, Nikolina Jovanovic, Ljubomir Hotujac, Psychological Consequences of Rape on Women in 1991-1995 War in Croatia and Bosnia and Herzegovina, U.S. National Library of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC2080379/

[4] Resolution 827, http://www.icty.org/x/file/Legal%20Library/Statute/statute_827_1993_en.pdf

[5]CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 39, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-vii/index.html

[6] International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/press/tadic-case-verdict

[7] The Hague, The Tribunal’s first trial : another step in the fulfillment of the Tribunal’s mandate, International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/sid/7361

[8] International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/sid/7242

[9] CHAPTER VII: ACTION WITH RESPECT TO THREATS TO THE PEACE, BREACHES OF THE PEACE, AND ACTS OF AGGRESSION, Article 41, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-vii/index.html

[10] CHAPTER V: THE SECURITY COUNCIL, Article 29, Charter of the United Nations http://www.un.org/en/sections/un-charter/chapter-v/index.html  

[11]Key Figures of the Case, International Criminal Tribunal for the former Yugoslavia http://www.icty.org/en/cases/key-figures-cases