Reading the political
Critical international criminal law scholars often seek to problematize the law/politics distinction, pointing out that law is nothing but politics all the way down. An institutional interpretation of Schmitt demonstrates that defining the exception is thus not about the exercise of individual will but rather the outcome of institutional politics. The Ayyash decisions have been criticized for rolling back the precedent set by the ICTY in Tadic in which the Appeals Chamber found that challenges to the legality of ICTs are inherently challenges to jurisdiction. The Chamber distinguished Ayyash from its ruling in El Sayed, where it held that the concept of inherent jurisdiction permitted it to hear a request for documents launched by an individual formally imprisoned under the authority of the Tribunal. The defence teams struggled to articulate a coherent vision of the proper political role for the Security Council and its relationship to the Tribunal.