Symposium: The International Tribunal for Former Yugoslavia Comes of Age Nuremberg Revisited: The Tadic Case • Jose E. Alvarez* 'sur une base fragile, on n'ddifie rien de solide' Claude Lombois The forthcoming trial of Dusko Tadic, the Bosnian Serb charged with violating international humanitarian law, including genocide, grave breaches of the Fourth Geneva Convention, and crimes against humanity, is likely to be foundational, po- litical and epic. 1 Like the Nuremberg and Tokyo trials, the trial of the first defendant in the custody of the new ad hoc war crimes tribunal for the former Yugoslavia 2 is foundational in that it seeks not only to effect legal justice for Tadic but to reinvig- orate the Nuremberg principles, and indirectly, the rule of law. It is political insofar as intended to deter future war crimes, make reconciliation possible in the former Yugoslavia, and help restore peace. It is epic since, beyond Tadic's guilt or inno- cence, what is at stake is the Security Council's power to direct the first international criminal proceedings since World War II through ad hoc tribunals created by Coun- cil fiat. 3 Even before the trial of Tadic begins, its likely legacies are emerging, thanks to pre-trial defense motions challenging (1) the legality of the establishment of the Tribunal, (2) its primacy over national courts, and (3) its subject matter jurisdiction. This comment focuses on the trial and appellate chambers' responses to the first two sets of defense arguments. 4 In these decisions, issued in August and October 1996 * Professor of Law, University of Michigan Law School 1 See David Luban, Legal Modernism 335-78 (discussing Nuremberg) and 379-91 (discussing the foun- dational, political and epic aspects of particular trialsX1994). 2 Established by Security Council Resolution 827, S/Res/827, May 25,1993. 3 The Council has also created an international tribunal for Rwanda. Security Council Resolution 955, S/Res/955, Nov. 8,1994. 4 Tadic argued, among other things, that the Tribunal was illegal because: the UN drafters had not envis- aged it, the Assembly was not involved in its creation, the text of the Charter did not grant the Council the authority, the Council had not consistently created such tribunals in other instances, the Council could not act on individuals, there was no real threat to the peace, the Tribunal would not promote 7 EJIL (1996) 245-264 Downloaded from https://academic.oup.com/ejil/article-abstract/7/2/245/433799 by guest on 21 May 2020