Pending before this Trial Chamber of the International Tribunal for the Prosecution of Persons Responsible for Serious Violations of International Humanitarian Law Committed in the Territory of the Former Yugoslavia Since 1991 ("International Tribunal") is a Motion That the Accused State Whether They will Waive any Objection to the Trial Chamber Sitting after 17 November 1997 (the "Motion"), filed by the Office of the Prosecutor (the "Prosecution") on 28 May 1997 (Official Record at Registry Page ("RP") D 3738 - D 3740). The Defence on behalf of the four accused persons (the "Defence") did not respond timeously to the Motion either in writing or orally. The Defence for the accused Hazim Delic did file a written response to the Motion on 20 June 1997.

Subsequently, on 17 June 1997, the Prosecution filed another motion by which it seeks an immediate hearing on the Motion (RP D 3869 - D 3870).

THE TRIAL CHAMBER, HAVING CONSIDERED the Prosecution’s written submissions,

1. On 21 May 1997, the General Assembly of the United Nations Organisation (the "General Assembly") elected a set of eleven Judges to serve on the International Tribunal for a four year term starting on 17 November 1997. The three Judges of this Trial Chamber, namely, Judges Adolphus Karibi-Whyte, presiding, Elizabeth Odio Benito and Saad Saood Jan were not re-elected. Their tenure as Judges of the International Tribunal thus expires on 17 November 1997, in accordance with the terms of their appointments pursuant to Article 13(4) of the Statute of the International Tribunal (the "Statute").

2. The Motion requests "the Defence to indicate whether they waive any challenge they might have to the present Trial Chamber continuing to hear this case after 17 November 1997" (RP D3869). The Prosecution is anxious to know the status of the Judges as of 17 November 1997 because the trial is very likely to continue after that date. The implication to be drawn from the Motion is that there is either a defect in the establishment of the Trial Chamber, or that there will be a defect in its membership as from 17 November 1997.

3. The Trial Chamber considers that it is unnecessary to convene a hearing on the Motion because of a fundamental misconception regarding the legal status of the Judges of the Trial Chamber and of their continuance on the present proceedings, if necessary, after 17 November 1997.

4. It is beyond doubt that the Trial Chamber is properly established under Article 12 and the Judges have been properly assigned to the Trial Chamber by the President under Article 14 of the Statute. Accordingly, the establishment and composition of the Trial Chamber are strictly in compliance with the Statute. It would seem, therefore, that the perceived doubt about the position of the Judges after 17 November 1997 is the critical factor.

5. It is important, therefore, to refer to Article 13(4) of the Statute which states that "[t]he Judges shall be elected for a term of four years. The terms and conditions of service shall be those of the judges of the International Court of Justice. They shall be eligible for re-election."

The three Judges of the Trial Chamber owe their tenure as judges of the International Tribunal to an election of the General Assembly in May 1993 and their appointments took effect from 17 November 1993¹. Accordingly, they will cease to be Judges of the Tribunal when their tenure expires on the 17 November 1997. However, this is not dispositive of the Motion since their terms and conditions of service are identical to those of the judges of the International Court of Justice ("ICJ"). Thus, we must refer to the terms and conditions of service of the judges of the ICJ as expressed in the enabling provisions of the Statute of the ICJ.

6. Article 13(3) of the ICJ Statute provides that "[t]he members [judges] of the Court shall continue to discharge their duties until their places have been filled. Though replaced, they shall finish any cases which they may have begun." (Emphasis added.) This is the relevant applicable provision of the terms and conditions of the judges of the ICJ referred to by Article 13(4) of the Statute of the Tribunal. It follows that the Judges of the Trial Chamber, namely, Judges Karibi-Whyte, Odio Benito and Jan, shall continue to discharge their duties despite their non-re-election and, even if replaced, shall finish any cases which they have begun.

7. The Trial Chamber is of the opinion that Article 13(3) of the ICJ Statute, which is incorporated into Article 13(4) of the Statute by reference, is intended not only to ensure continuity, but the certainty that the same judges shall hear matters before the Trial Chamber in the interest of judicial efficiency. The interests of justice and public policy, as opposed to political policy, have always approved of judges continuing to hear cases to finality even after the expiry of their tenure.

8. The Motion, apart from its misunderstanding of the legal status of the Judges after 17 November 1997, incorrectly assumes that the consent of the Defence is required to vest jurisdiction on the Trial Chamber or on the Judges of the Trial Chamber and will serve to do so. The competence of the International Tribunal in Article 1, and of the Judges in Article 13 of the Statute is entirely statutory. The question of incompetence can only be raised by relying on a defect in either of these provisions. It is settled law that where a Tribunal has no jurisdiction, especially in a criminal case, the concession of parties cannot vest jurisdiction. Similarly should there be a defect in the legality or validity of the appointment of the Judges, a waiver of the right to challenge the status cannot cure such defect.

9. The Prosecutor is misconceived in the assumption that the waiver of any right to challenge an imagined defect will confer jurisdiction where there is none. The case of the Prosecutor v. Delalic et al. was commenced by the Trial Chamber and is part-heard. The Trial Chamber in accordance with Article 13(4) of the Tribunal’s Statute which incorporates Article 13(3) of the Statute of the International Court of Justice by reference, has the legal capacity to hear the case to finality.

THE TRIAL CHAMBER, PURSUANT TO RULE 54,

HEREBY DISMISSES the Motion.

Done in English and French, the English text being authoritative.

__________________________

Adolphus Godwin Karibi-Whyte

Presiding Judge

Dated this twenty-third day of June 1997

At The Hague

The Netherlands

[Seal of the tribunal]

1. Judge Jan who took office in August 1996 is completing the term of office of the Late Judge Rustam Sidhwa who was elected in May 1993.