The Powers of the United Nations International Criminal Tribunals

Max Planck Yearbook of United Nations Law

Volumn 2, Issue , 1998, Pages 141-167

  Saroosbi, Danesh ^a  

^a NONE

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EID: 85180680651     PISSN: 13894633     EISSN: None     Source Type: Book Series    
DOI: 10.1163/187574198x00064     Document Type: Article

References (93)

1. The author worked previously with the Office of the Prosecutor, International Criminal Tribunal for the former Yugoslavia. However, any views expressed are solely those of the author and are not necessarily those of the Office of the Prosecutor or the United Nations. The author would like to express the utmost gratitude to his former doctoral supervisor Judge (formerly Professor) Rosalyn Higgins of the International Court of Justice for her continuing guidance, advice, and encouragement and for her valuable comments on an earlier version of this article. He would also like to express his great appreciation to Professor Maurice Mendelson and Mr. William Fenrick for their very helpful comments on an earlier version of this article. — The establishment of the Tribunals also marked a watershed in the development of international criminal law. See more generally on the Tribunals: P. Akhavan, "The Yugoslav Tribunal at a Crossroads: The Dayton Peace Agreement and Beyond", HRQ 18 (1996), 259 et seq.;
2. M. Bergsmo, "International Criminal Tribunal for the Former Yugoslavia: Recent Developments", HRLJ15 (1994), 405 et seq.;
3. C. Bassiouni and P. Manikas, The Law of the International Criminal Tribunal for the Former Yugoslavia^ 1996;
4. C. Cisse, "The International Tribunals for the Former Yugoslavia and Rwanda: Some Elements of Comparison", Transnat'lL. & Contemp.Probs. 7 (1996), 103 et seq.;
5. E. David, "Le Tribunal international penal pour l'ex-Yugoslavie", RBDI 25 (1992), 565 et seq.;
6. R. Dixon, "New Developments in the International Criminal Tribunal for the Former Yugoslavia: Prominent Leaders In-dieted and Jurisdiction Established", LJIL 8 (1995), 449 et seq.;
7. W. Fenrick, "Some International Law Problems Related to Prosecutions before the International Criminal Tribunal for the Former Yugoslavia", Duke ].Comp.& Int'l L. 6 (1995), 103 et seq.,
8. and W. Fenrick, "International Humanitarian Law and Criminal Trials", Transnat'lL. & Contemp.Probs. 7 (1997), 24 et seq.;
9. H. Fox, "The Objections to Transfer of Criminal Jurisdiction to the UN Tribunal", ICLQ 46 (1997), 434 et seq.;
10. C. Greenwood, "International Humanitarian Law and the Tadic case", EJIL 7 (1996), 265 et seq.
11. , and C. Greenwood "The International Tribunal for Former Yugoslavia", Int'l Aff. 69 (1993), 641 et seq.;
12. R. Lee, "The Rwanda Tribunal", LJIL 9 (1996), 37 et seq.,
13. and R. Lee, "Symposium: Should There be an International Tribunal for Crimes against Humanity?", Pace Int'l L.Rev. 6 (1994), 93 et seq.;
14. T. Meron, "War Crimes in Yugoslavia and the Development of International Law", AJIL 88 (1994), 78 et seq.;
15. V. Morris and R. Scharf, An Insider's Guide to the International Criminal Tribunal for the Former Yugoslavia, 1994;
16. J. O'Brien, "The International Tribunal for Violations of International Humanitarian Law in the Former Yugoslavia", AJIL 87 (1993), 638 et seq.;
17. D. Shraga and R. Zacklin, "The International Criminal Tribunal for the Former Yugoslavia", EJIL 3 (1992), 360 et seq.;
18. P. Szasz, "The Proposed War Crimes Tribunal for ex-Yugoslavia", N.YUJ.Int'lL.& Pol. 25 (1994), 405 etseq.;
19. and C. Warbrick, "Co-operation with the International Criminal Tribunal for Yugoslavia", ICLQ 45 (1996), 947 et seq.
20. See, for example, below under notes 14 and 38.
21. See D. Sarooshi, "The Legal Framework Governing United Nations Subsidary Organs", BYIL 67 (1996), 413 (428).
22. Ibid.j 414. The judicial nature or independence of the International Tribunals can in no way affect their consideration as an integral part of the United Nations Organization. In this context we note that the ICJ also exercises judicial functions although it is of course a UN principal organ: see Article 92 of the Charter.
23. As the Appeal's Chamber of the International Criminal Tribunal found in the TadicCa.se: "The Security Council has resorted to the establishment of a judicial organ in the form of an international criminal tribunal as an instrument for the exercise of its own principal function of the maintenance of peace and security, i.e., as a measure contributing to the restoration and maintenance of peace in the former Yugoslavia." (Tadic Case, Case No. IT-94-1-AR72 (2 Oct. 1995), ILM 35 (1996), 32 at para. 38.) Moreover, as the Secretary-General in his report to the Security Council on the establishment of the Tribunal states: "the International Tribunal should be established by a decision of the Security Council on the basis of Chapter VII... Such a decision would constitute a measure to maintain or restore international peace ... (the establishment of the Tribunal would be justifiable) in terms of the object and purpose of the decision (to maintain or restore international peace)". (Doc.S/25704, 7).
24. Sarooshi, see note 3, 422 et seq.
25. The doctrine of implied powers is well accepted under international law. It was recognized in express terms by the ICJ as early as 1949 in the Reparation for Injuries Suffered in the Service ofthe United Nations Case where the Court stated: "Under international law the organization must be deemed to have those powers which, though not expressly provided in the Charter, are conferred upon it by necessary implication as being essential to the performance of its duties. ... the rights and duties of an entity such as the Organization must depend upon its purposes and functions as specified or implicit in its constituent documents and developed in practice." (ICJ Reports 1949,174 et seq. (180,182)).
26. This doctrine has been applied by the ICJ in several subsequent cases. For example, in the Effect of Awards of Compensation Made by the UN Administrative Tribunal Case the ICJ held that the General Assembly could validly establish an administrative tribunal in the absence of an express power to do so since the capacity to do this arose "by necessary intendment" out of the Charter. (ICJ Reports 1954, 47 et seq., (56-57)). The Court found that the exercise of this implied power was necessary for the effective attainment by the General Assembly of one of its purposes: the regulation of Staff Relations, (ibid., 61.) The test to determine if an international organization possesses an implied power under international law is whether the exercise of the power is necessary for the attainment by the organization of its object and purpose as specified in its constituent instrument. See also the Competence of the General Assembly for the Admission of a State to the United Nations Case, ICJ Reports 1950, 4 et seq.; the Judgments of the Administrative Tribunal of the International Labour Organization Case, ICJ Reports 1956, 77 et seq., (91 et seq.); the Certain Expenses of the United Nations Case, ICJ Reports 1962,151 et seq.; the Namibia Case, ICJ Reports 1971,16etseq.; and the Legality of the Use by a State of Nuclear Weapons in Armed Conflict Case, Advisory Opinion, 8 July 1996 General List No. 93,12-13 (not yet published in ICJ Reports). See also A. Campbell, "The Limits of the Powers of International Organizations", ICLQ 32 (1983), 523 et seq.; and D. Ciobanu, Preliminary Objections to the Jurisdiction of the United Nations Principal Organs, 1973. See note 25 and corresponding text.
27. Effect of Awards of Compensation Made by the United Nations Administrative Tribunal, ICJ Reports 1954, 47 et seq. (61 et seq.).
28. Ibid.
29. » Ibid.
30. Sarooshi, see note 3, 452-454. Article 25 of the Statute of the Tribunal does provide for the possibility of appellate proceedings within the International Tribunal. In fact, the Appeals Chamber of the Tribunal found in the Tadic Case that: "This provision stands in conformity with the International Covenant on Civil and Political Rights which insists upon a right of appeal." (Tadic Case, see note 5, para. 4.)
31. As the Trial Chamber in the Blaskic Subpoena Case stated: "As a subsidiary organ of a judicial nature, it cannot be overemphasized that a fundamental prerequisite for its fair and effective functioning is its capacity to
32. act autonomously. The Security Council does not perform judicial functions, although it has the authority to establish a judicial body. This serves to illustrate that a subsidiary organ is not an integral part of its creator but rather a satellite of it, complete and of independent character." {Prosecutor v. Tihomir Blaskic, Decision on the Objection of the Republic of Croatia to the issuance of subpoena duces tecum, IT-95-14-PT, 18 July 1997, at p. 11.) Moreover, Alvarez has stated: "As the Tribunal's decisions issued to date suggest, in at least some of these instances the body is * subsidiary' in name only and can render final judgments that even the Council is not authorized to disturb — and that in turn can disturb the Council by suggesting limits on its powers." (J. Alvarez, "Judging the Security Council", AJIL 90 (1996), 1 et seq. (11)). However, this situation is sui generis since the Council is delegating powers to a subsidiary organ to exercise functions which it cannot itself exercise. The position may very well be different with respect to a delegation by the Council of its own powers and functions under Chapter VII to a UN subsidiary organ, where this is lawful.
33. To prevent this from occurring, the Secretary-General stated in his report dealing with the establishment of the Tribunal for the former Yugoslavia: "that it [the Tribunal] should perform its functions independently of political considerations and not be subject to the authority or control of the Council with regard to the performance of its judicial functions". (Doc. S/25704 and Add. 1 of 3 May 1993). Similarly, in the case of the Rwanda Tribunal the Secretary-General stated: "The International Tribunal for Rwanda is a subsidiary organ of the Security Council .... As such, it is dependent in administrative and financial matters on various United Nations organs; as a judicial body, however, it is independent of any one particular State or group of States, including its parent body, the Security Council." (Doc. S/l995/134, para. 8). This position was adopted by the Council when it adopted the Secretary-General's report in S/RES/827 (1993) of 25 May 1993. As such, the Security Council is bound by decisions of the Tribunals and cannot reject a decision on any grounds, including peace and security. That is, the Council could not make a finding that a decision of a Tribunal constitutes a threat to international peace and security since it has already delegated to the Tribunals a power of binding decision in respect of individual criminal liability as a measure to restore international peace and security. There is precedent for this type of approach. In the Effect of Awards Case, the ICJ found that the General Assembly could not itself overturn a decision of that Tribunal in a particular case since it did not itself possess judicial functions and moreover the Assembly had in any case delegated a power of binding decision to the Tribunal. (Effect of Awards of Compensation Made by the United Nations Administrative Tribunal Case, ICJ Reports 1954, 47 et seq. (61
34. et seq.)).
35. On these inherent judicial powers, see note 25 and corresponding text.
36. See further on this concept of competence de la competence, the Tadic jurisdiction decision, see note 5; and B. Cheng, General Principles of Law as applied by International Courts and Tribunals, 1953, 275-301.
37. See the following commentaries to Article 25: J. Delbriick, "On Art. 25*, in: B. Simma (ed.), The Charter of the United Nations: A Commentary, 1994, 407 et seq.; and J.-P. Cot and A. Pellet (eds), La Charte des Nations Unies, 1991,471 et seq.
38. The Security Council possesses a general competence to delegate its powers to certain entities. This competence is not, however, provided for in express terms by the Charter. The primary source of this general competence is the law of international institutions. It is a general principle
39. under the law of international institutions that a principal organ of an international organization possesses a general competence to delegate certain of its powers to those entities which are part of the organization. The existence of such a general competence as part of the corpus of the law of international institutions was affirmed in the case of Meroni v. High Authority', where the European Court of Justice found that the High Authority could delegate certain of its powers under the Treaty of Rome even where the Treaty did not expressly provide for such a delegation. (Case 10/56, (1958) ECR 51 et seq.) Moreover, the Council possessing a general competence to delegate its Chapter VII powers is in accord with the object and purpose of Chapter VII: the object and purpose being that the Council should be able to take such action as it deems necessary to maintain or restore international peace and security. (This is an expression of the more general point made earlier by Kirk who in 1946 stated: "The general principle... which runs consistently throughout the Charter, was that the Council should have the greatest possible flexibility in handling a situation which menaced the peace of the world." (G. Kirk, "The Enforcement of Security", Yale L.J. 55 (1946), 1081 et seq. (1088)).
40. Accordingly, M. Hilf states: "Subsidiary organs may be empowered to perform the functions of the SC (Security Council) even to the extent that this may have external consequences. Article 25 obliges member States to accept and execute the decisions of the Security Council. These include the decisions of subsidiary organs to the extent that they confine themselves to the scope of functions transferred by the SC." (M. Hilf, "On Art. 29", Mn. 30, in: Simma, see note 17, 486).
41. The ICJ accepted this general approach in the Certain Expenses Case when it found that the Security Council had adopted the decisions of the Secretary-General as its own by its "record of reiterated consideration, confirmation, approval and ratification ... of the actions of the Secretary-General" {Certain Expenses Case, ICJ Reports 1962, 151 et seq. (305).
42. See Section III. (3).
43. Prosecutor v. Tihomir Blaskic, Judgment on the Request of the Republic of Croatia for Review of the Decision of Trial Chamber II of 18 July 1997, 29 October 1997, IT-95-14-AR108 bis, para. 26. The Appeals Chamber found that this obligation could be accepted by States that were not Members of the United Nations by means of express acceptance of the obligation in writing: see ibid.
44. The Appeals Chamber has, however, stated that there is a limitation on this power: that an order for the production of documents must be specific in nature and should not simply identify broad categories of documents: Blaskic Subpoena Case, see note 22, para. 32. See also the excellent review of authorities in this area by the Amicus Curiae Brief submitted by the Max Planck Institute for Comparative Public Law and International Law in the Blaskic Subpoena Case before the Appeals Chamber, IT-95-14-PT, (prepared by J.A. Frowein, G. Nolte, K. Oellers-Frahm, and A. Zimmermann), 374-377.
45. See as an example of how this article operates, the Lockerbie Case, Provisional Measures Phase, ICJ Reports 1992, 3 et seq. See further on Article 103 of the Charter: Cot and Pellet, see note 17,1381; and R.Bernhardt, "On Art. 103", in: Simma, see note 17, 1116 et seq.
46. This inherent judicial power is different from the concept of inherent powers that international organizations in general are said to possess: see F. Seyersted, United Nations Forces, 1966,133-134; M. Ramo-Montaldo, "International Legal Personality and Implied Powers of International Organisations", BYIL 44 (1970), 111 et seq., (143, 154); and N. White, The Law of International Organisations, 1996,131-133.
47. Blaskic Subpoena Case, see note 22, para. 27.
48. Nuclear Tests Case, ICJ Reports 1974,253 et seq., para. 23, as cited in the Blaskic Subpoena Case, see note 22, para. 27. Moreover, the Amicus Curiae Brief of the Max Planck Institute in the Blaskic Subpoena Case states that "it is safe to say that the Tribunal, established to enforce a binding Security Council resolution adopted for the maintenance of international peace and security can not be assumed to be vested with fewer powers than those normally inherent in other international courts and tribunals." {Amicus Curiae Brief, see note 23, 363).
49. Tadic Case, see note 5, para. 18.
50. Blaskic Subpoena Case, see note 22, para. 33. The Appeals Chamber was clear in placing the power to decide that a State had failed to comply with the Statute of Rules squarely within the scope of the Tribunal's "inherent judicial powers" when it stated: "(w)hen faced with an allegation of non-compliance with an order or request issued under Article 29, a Judge, a Trial Chamber or the President must be satisfied that the State has clearly failed to comply with the order or request. This finding is totally different from that made, at the request of the Security Council, by a fact-finding body, and a fortiori from that undertaken by a political or quasi-political body. ... By contrast, the International Tribunal (i.e., a Trial Chamber, a Judge or the President) engages in a judicial activity proper: acting upon all the principles and rules of judicial propriety, it scrutinises the behaviour of a certain State in order to establish formally whether or not that State has breached its international obligation to cooperate with the International Tribunal". (Blaskic Subpoena Case, see note 22, para. 35).
51. See Article 36 paras 1 and 2 of the Statute of the ICJ. See further: I. Brownlie, Principles of Public International Law, 1990, 721-730; Sh. Ro-senne, The World Court: What it is and how it works, 1995, 81-111; and L. Fisler-Damrosch, (ed.), The International Court of Justice at a Crossroad, 1987, 3 et seq. This basis of jurisdiction may be the same as in the case of the future Permanent International Criminal Court since this Court's jurisdiction may also be based on the consent of the State concerned: see article 22 of the International Law Commission's Draft Articles on the Establishment of a Permanent International Criminal Court, Report of the International Law Commission on the work of its forty-sixth session, 1 September 1994, Doc. A/49/355. See also the proceedings of the Ad Hoc Committee of the General Assembly on the Establishment of an International Criminal Court, Doc.A/AC.244/1, 8.
52. This does not of course ignore the fact that the International Tribunal may discharge its functions only if it can count on the bona fide assistance and cooperation of sovereign States. It is on this basis that the Appeals Chamber in the Blaskic Subpoena Case stated: "It is ... to be regarded as sound policy for the Prosecutor, as well as defence counsel, first to seek, through cooperative means, the assistance of States, and only if they decline to lend support, then to request a Judge or Trial Chamber to have recourse to the mandatory action provided for in Article 29." {Blaskic Subpoena Case, see note 22, para. 31).
53. Ibid., para. 28.
54. Blaskic Subpoena Case, see note 22, para. 25. See also the Amicus Curiae Brief submitted by the Max Planck Institute, see note 23, 382.
55. Blaskic Subpoena Case, see note 22, para. 38.
56. The Appeals Chamber in the Blaskic Subpoena Case stated with respect to the remedies for non-compliance by an individual with a subpoena or order issued by a Judge or Trial Chamber: "(t)he remedies available to the International Tribunal range from a general power to hold individuals in contempt of the International Tribunal (utilising the inherent contempt power rightly mentioned by the Trial Chamber) to the specific contempt power provided for in Rule 77." (Blaskic Subpoena Case, see note 22, para. 59) For the relevant section of the Trial Chamber's decision on this issue, see note 13, para. 62. See also the Amicus Curiae Brief submitted by the Max Planck Institute in the Blaskic Subpoena Case, see note 23, 386, 395.
57. This is a different limitation from that where a certain power cannot be said to lie at all within the scope of the judicial function and as such is not an "inherent judicial power" at all. The Appeals Chamber in the Blaskic Subpoena Case used the concept of "inherent judicial powers" in this way to limit the scope of the Tribunal's powers when it found, correctly, that the International Tribunals do not possess any power to take enforcement measures against a State. It stated: "(h)ad the drafters of the Statutes intended to vest the International Tribunal with such a power, they would have expressly provided for it. In the case of an international judicial body, this is not a power that can be regarded as inherent in its functions." {Blaskic Subpoena Case, see note 22, para. 25).
58. In common law jurisdictions, such a court order to enforce the attendance of a witness is called subpoena ad testificandum: see "Evidence", in: Halsbury's Laws of England, 4th edition, 1976, Vol. 17, para. 244; and "Witnesses", in: American Jurisprudence, 2nd edition, 1981, para. 9.
59. This is referring specifically to the case of the Tribunal for the former Yugoslavia, although the analysis applies mutatis mutandis to the case of the Rwanda Tribunal which has an identical provision in Article 18 para. 2 of its Statute.
60. As the Amicus Curiae Brief of the Max Planck Institute contends: "Under Art. 18 para. 2 of the Statute the Prosecutor has the right to directly address himself or herself to suspects, witnesses and victims and to question them. Art. 19 para. 2 gives the judge the power to issue orders
61. as may be required for the conduct of the trial. If the prosecutor possesses the power to direct himself or herself directly to individuals and since the Tribunal has essentially only a supportive function for the Prosecutor in the pre-trial phase, it would be anomalous if the Tribunal should not also be able to address itself directly to individuals." (Amicus Curiae Brief of the Max Planck Institute, see note 23, 388, 389). As the Appeals Chamber in the Blaskic Subpoena Case stated: "It is therefore to be assumed that an inherent power to address itself directly to ... individuals inures to the advantage of the International Tribunal. Were it not vested with such a power, the International Tribunal would be unable to guarantee a fair trial to persons accused of atrocities in the former Yugoslavia. ... the International Tribunal may directly summon a witness, or order an individual to hand over evidence or appear before a Judge or Trial Chamber. In other words, the International Tribunal may enter into direct contact with an individual subject to the sovereign authority of a State. The individual, being within the ancillary (or incidental) criminal jurisdiction of the International Tribunal, is duty-bound to comply with its orders, requests and summonses." (Blaskic Subpoena Case, see note 22, para. 56). This competence applies, however, only to the courts of the Tribunal. The Prosecutor does not under the Statute possess such a power. Accordingly, for the Prosecutor to compel testimony from a witness it is necessary to obtain an order from the Court to this effect. Concerning the power of a Trial Chamber to order the production of documents, see the decision of the Trial Chamber in the Blaskic Subpoena Case, see note 13,15-16. Blaskic Subpoena Case, see note 22, para. 47.
62. See, for example: Criminal Procedure (Attendance of Witnesses) Act, 1965 of the United Kingdom, Section 2, Schedule 1, paras. 1-2; Federal Rules of Criminal Procedure of the United States, Section 17; Code de procedure penale of France, Art. 283; Criminal Code of Canada, Sections 698-700; and Ley de Enjuiciamiento Criminal (Code of Criminal Procedure) of Spain, Art. 575 (as cited in Prosecutor's Brief in Support of Subpoena Duces Tecum in: The Prosecutor v. Tihomir Blaskic, IT-95-14T, 1 April 1997, 12.) Regarding the production of documents, see the decision of the Trial Chamber in the Blaskic Subpoena Case, see note 13, 17-19. This of course means that the defence may also make a motion to a court of the Tribunal that an order be made that a UN official be compelled to give testimony. This is required by the principle of equality of arms in criminal proceedings. On the case-law before the European Court of Justice concerning the requirement of an equality of arms in criminal proceedings, see, for example, Feldbrugge v. The Netherlands (A/99), European Human Rights Reports 8 (1986), 524 at para. 44.
63. For example, the ICJ cannot require testimony or the production of documents from individuals or States: see further: G. Fitzmaurice, The Law and Procedure of the International Court of Justice, 1993, Vol. 2, at 576-577; and K. Highet, "Evidence, the Court, and the Nicaragua Case", 4/7181(1987), letseq. (10).
64. See note 36 and corresponding text.
65. Amicus Curiae Brief of the Max Planck Institute, see note 23, 391.
66. S.I. 1996 No. 716. For discussion of the legal basis of this Order in Council, see Warbrick, see note 1; and cf. Fox, see note 1.
67. Amicus Curiae Brief of the Max Planck Institute, see note 23, 391.
68. Blaskic Subpoena Case, see note 22, para. 48.
69. The Appeals Chamber states that it "dismisses the possibility of the International Tribunal addressing subpoenas to State officials acting in their official capacity. Such officials are mere instruments of a State and their official action can only be attributed to the State. They cannot be the subject of sanctions or penalties for conduct that is not private but undertaken on behalf of a State. In other words, State officials cannot suffer the consequences of wrongful acts which are not attributable to them personally but to the State on whose behalf they act: they enjoy so-called 'functional immunity'. This is a well-established rule of customary international law ... ." {Blaskic Subpoena Case, see note 22, para. 38).
70. Cf. the decision of the Trial Chamber in the Blaskic Case which held: "the fact that a person ... is an official of a State does not preclude the issuance of a subpoena duces tecum addressed to him or her directly. ... binding orders may be issued by the International Tribunal addressed to both States and individuals and there is, therefore, no reason why a person exercising State functions, who has been identified as the relevant person ... should not similarly be under an obligation to comply with a specific order of which he or she is the subject." {Blaskic Subpoena Case, see note 13,33).
71. See further on Article 105 the commentaries, M.Gerster, "On Art. 105" in: Simma, see note 17,1137 et seq.; and Cot and Pellet, see note 17,1397 et seq.
72. This provision was invoked in the Applicability of Article VI, Section 22, ofthe Convention on the Privileges and Immunities ofthe United Nations Case, ICJ Reports 1989,14-17, at paras. 28-36, albeit that the Court did not found its jurisdiction in article 30 of the Convention on the Privileges and Immunities of the United Nations.
73. UNJYB 1983, 213.
74. See also P. Bekker, The Legal Position of Intergovernmental Organizations: A Functional Analysis of Their Legal Status and Immunities, 1994, 98-109.
75. See also note 4 and corresponding text.
76. In the discussion on the current Article 7 para. 2 of the Charter at the San Francisco Conference, the article of the Charter which gives UN principal organs a general authority to establish subsidiary organs, this argument was made by the representative of the Netherlands in the Co-ordination Committee: 30 May Mtg. 8, UN Doc. WD 60, CO/29 Vol.17, 37.
77. See, for example, UNJYB 1978,186.
78. Blaskic Subpoena Case, see note 22, para. 50.
79. If this were not the case, the untenable position would arise that the staff members and documents of the International Tribunals would need to receive an authorisation from the UN Secretary-General before they could give testimony — or in the case of documents, before being tendered in evidence — in a case before a Tribunal.
80. Sarooshi, see note 3, 433.
81. Cf. H. Thirlway, "The Law and Procedure of the International Court of Justice 1960-1989", BYIL 67 (1996), 1 et seq., (62).
82. Memorandum by the Secretariat of UNIDO dated 29 August 1990, UNJYB 1990, 311-312. Thus, in the context of S/RES/661 (1990) of 6 August 1990 which imposed an arms embargo against Iraq, the legal opinion went on to state: "It follows that UNIDO may not undertake any activity in furtherance of the activities banned by the Security Council or request others to commit such activities." (Ibid.),
83. On the doctrine of implied powers of an international organisation under international law, see note 7.
84. Para. 11 (emphasis added). See also, for example, the case of ICAO which is obliged, under the terms of the agreement by which it became a specialized agency, to render "such assistance to the Security Council as that Council may request, including assistance in carrying out decisions for the maintenance or restoration of international peace and security." (Article VII of the Agreement between the United Nations and the International Civil Aviation Organization, UNTS Vol. 8 No. 45).
85. Chapter VII decisions of the Security Council impose a binding obligation on States under Article 25 of the Charter. It is thus arguable that States, even when acting in an International Organization of which they are a Member, are under an obligation to comply with a decision of the Court of the Tribunal. This view is supported by Article 48 para. 2 of the Charter which provides: "Such decisions (by the Security Council acting under Chapter VII) shall be carried out by the Members of the United Nations directly and through their anion in the appropriate international agencies ofwhich they are members" Even though this obligation is not imposed on the agencies directly, States must still act in these agencies in a manner consistent with their obligations owed to the Security Council. See also Thirlway, see note 60, 62-63.
86. Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, UNTS Vol. 33 No. 521.
87. This is implicit in the authority and control that a UN principal organ exercises over its subsidiary: Sarooshi, see note 3, 447.
88. UNJYB 1974, 188. The Office of Legal Affairs has stated in a letter to a UN Legal Liaison Officer in Geneva: "The United Nations authorizes officials to appear and to testify on specific matters within their official knowledge provided (1) that there is no reasonable effective alternative to such testimony for the orderly adjudication or prosecution of the case; and (2) that no significant United Nations interest would be adversely affected by the waiver. The authority to waive the immunity and to authorize the testimony has been delegated to the Legal Counsel." (UNJYB 1978,191.)
89. See note 5 and corresponding text.
90. ILO Administrative Tribunal, Ballo v. UNESCO, Judgment No. 191,15 May 1972, in the ILO Official Bulletin, Vol. LV, Nos 2, 3, and 4, 1972, 224 at 227, as cited in Blaskic Subpoena Case, see note 22, at note 95. Moreover, there has been case-law before the Administrative Tribunal of the ILO that has limited significantly the possibility of international organizations being able to withhold documents for reasons of confidentiality: for a survey of such decisions, see: C. Amerasinghe, "Problems of Evidence before International Administrative Tribunals", in: R. Lillich (ed.), Fact-Finding before International Tribunals, 1992, 205 et seq,, (214 et seq.); and the Amicus Curiae Brief of the Max Planck Institute, see note 23, 372-373.
91. Convention on the Privileges and Immunities of the Specialized Agencies, 21 November 1947, see note 65.
92. UNJYB 1963,179.
93. The Convention does not specify which organ of a Specialized Agency has the competence to make such a waiver, leaving this instead to each Specialized Agency to decide.