Limitations (UNSC Resolution)
|Decision on Holbrooke Agreement - 12.10.2009||
35. The Appeals Chamber considers that the Statute of the Tribunal can only be amended or derogated by means of UNSC resolution. This plainly derives from the actus contrarius doctrine, is established in the jurisprudence of the Tribunal, and is confirmed by the practice of the UNSC.
36. […] Therefore, contrary to what the Trial Chamber appears to concede, the mere involvement of the UNSC in concluding the alleged Agreement [agreement allegedly reached between the accused Radovan Karadžić and Mr. Richard Holbrooke on 18-19 July 1996], without a ratification of the alleged Agreement by a UNSC resolution, could not limit the jurisdiction of the Tribunal. The Appeals Chamber notes that there is no UNSC resolution excluding the Appellant from the ambit the Tribunal’s jurisdiction.
37. In light of the foregoing, the Appeals Chamber finds that under no circumstance would the alleged Agreement in and of itself, even if its existence was proved, limit the jurisdiction of the Tribunal.
38. The Appellant’s argument that the applicability of the doctrine of apparent authority would prove that no UNSC resolution is necessary to amend the jurisdiction of the Tribunal is misplaced. As explained above, in the absence of a UNSC resolution, the alleged Agreement could not have any impact on the Tribunal’s jurisdiction, even if it were made with the actual authority of the UNSC. […] Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. A fortiori, even if one considered that the alleged Agreement was made with the apparent authority of the UNSC could not affect in any event the ambit of the Tribunal’s jurisdiction. In his submissions, the Appellant attempts to rely on analogy with jurisdictional matters in international criminal law a theory typical of contract law protecting the legitimate expectations of a contracting party believing without fault that a contract was validly concluded with a legitimate representative of the other party. However, the Appellant ignores that one of the requirements for applying a doctrine by analogy is the existence of an eadem ratio, that is, the existence of sufficient similarities between two cases. The field of contract law is so distant from the question of jurisdiction in international criminal law that the two are effectively incomparable. Jurisdiction of criminal courts is not a negotiable matter. The power of a court to decide a criminal matter is defined by law rather than private contracting parties, and thus the expectation of a party on the validity of an agreement on criminal jurisdiction cannot have any impact on jurisdiction. The Appeals Chamber considers that the Appellant’s submissions on apparent authority fall more squarely under the question of the applicability of the doctrine of abuse of process.
 See Krajišnik Decision, where the Appeals Chamber considered that a UNSC resolution is necessary for altering the norms contained in the Statute. In this instance Krajišnik argued that ad litem Judge Canivell should not continue sitting in his case; paras 1, 4. Although Judge Canivell’s four-year mandate was due to expire, the UNSC Resolution 1581/2005 of 18 January 2005 and the General Assembly by its 20 January 2005 Decision decided that Judge Canivell could finish the case to which he was assigned before the expiry of his term of office; para. 5. When it became clear that the case could not be completed before the expiration of Judge Canivell’s cumulative three-year term, the Security Council further adopted Resolution 1668/2006 which confirmed that Judge Canivell could continue to sit on the case; para. 6. In dismissing the appeal, the Appeals Chamber noted that the Security Council is not required to amend the Tribunal’s Statute in order to reflect all of its resolutions; para. 17. The Appeals Chamber held that the Security Council can address an administrative matter either by amending the Statute or simply adopting a resolution; para. 17. The Appeals Chamber further considered the UNSC Resolution 1668/2006 was directed to administrative matters and did not interfere with the Tribunal’s judicial function; para. 16. In other words, the Appeals Chamber distinguished between the matters interfering within the Tribunal’s judicial functions and those of a mere administrative character. The Appeals Chamber clearly stressed that in case of the latter, the UNSC can address such an issue by either formal amendment of the Statute or merely by way of issuing a resolution. It follows that the form of UNSC resolution is in any event indispensable for ruling on matters disciplined by the Statute. The Appeals Chamber further observes that the issue of jurisdiction is not merely an administrative matter.
 The UNSC has always acted by resolution when intervening in matters addressed in the Statute. See UNSC Resolution 827, S/RES/827, 25 May 1993 (establishing the Tribunal); UNSC Resolution 1534, S/RES/1534, 26 March 2005, para. 5 (calling on the Prosecution to focus on the most senior leaders responsible for crimes within the Tribunal’s jurisdiction); UNSC Resolution 1786, S/RES/1786, 28 November 2007 (appointing the Prosecutor); UNSC Resolution 1837, S/RES/1837, 29 September 2008 (extending terms of office of Judges).
 See, e.g. Impugned Decision [Prosecutor v. Radovan Karadžić, Case No. IT-95-5/18-PT, Decision on The Accused’s Holbrooke Agreement Motion, 8 July 2009], para. 61, where the Trial Chamber observes that “there is no evidence that the UNSC was involved directly in the making or implementation of the Agreement”; see also ibid, para. 62, where the Trial Chamber assumes “for the sake of argument that [...]] the UNSC can limit its jurisdiction by entering into immunity agreements through its agents and without the knowledge of the representatives of the Tribunal or without passing a resolution affirming such agreements” (emphasis omitted).
 Appeal [Appeal of Decision on Holbrooke Agreement, 27 July 2009], para. 44; Reply [Reply Brief: Appeal of Decision on Holbrooke Agreement, 10 August 2009, with public annex A and confidential annex B], paras 10-11.
 Infra, Section D.