Context & Background After the disintegration of the Socialist Federal Republic of Yugoslavia and the disintegration of multi-ethnic government in Bosnia and Herzegovina which followed soon after, Serbians started raising their voice, with the purpose to build a new and smaller Yugoslavia with a substantially Serb population; They would have achieved their goal dealing with the problem generated by Muslims and Croatians through the practice of ethnic cleansing.
The Accused Dusko Tadic is a citizen of the former Yugoslavia, of Serb ethnic descent, and a resident of the Republic of Bosnia and Herzegovina at the time of the alleged crimes. He was arrested in February 1994 in Germany, where he was then living In October 1994, the Prosecutor of the International Tribunal, Richard Goldstone, filed an application under rule 9 of the Rules, seeking a formal request to the Federal Republic of Germany, for defferal by the German courts to the competence of the International Tribunal. The Accused was then charged with 31 individual counts of persecution, murder, beatings and other offences alleged to have been committed in 1992 in the Prijedor district
Peculiarity of the Case It’s the first determination of individual guilt or innocence in connection with serious violations of international humanitarian law by a truly international tribunal, established by the United Nations.
Unanimously, that the Accused is NOT GUILTY for 9 counts; Unanimously, that the accused is GUILTY for 11 counts; By a Majority, that the accusations of «Grave breaches of the 1949 Geneva Conventions» were NOT APPLICABLE and that the Accused is consequently NOT GUILTY on the 11 relevant counts. The Chamber finds:
The Trial Chamber, by a majority of two to one (Judge McDonald dissenting), finds that the Accused could not be charged with grave breaches under art. 2 of the Statute because the alleged victims were not protected person under art.4 of the Fourth Geneva Convention of 1949. Article 2 of the Statute Article 4 of the Convention The Inapplicability of the Counts charging the Accused with grave breaches
In order for article 2 to be applicable, the victims must be protected persons, and the conflict must be international in character. These conditions subsisted since May 19, 1992 when the JNA officially withdrew from the Republic of Bosnia and Herzegovina THE QUESTION FOR THE CHAMBER IS WHETHER, AFTER MAY 19 THE FEDERAL REPUBLIC OF JUGOSLAVIA BY ITS WITHDRAWAL AND NOTWITHSTANDING ITS CONTINUING SUPPORT FOR THE VRS (Army of the Republic Srpska), HAD SUFFICIENTLY DISTANCED ITSELF FROM THE VRS SO THAT THOSE FORCES COULD NOT BE REGARDED AS DE FACTO ORGANS OF THE FEDERAL REPUBLIC OF YUGOSLAVIA.
Answering to the question, the Chamber considered the Case Concerning Military and Paramilitary Activities in and Against Nicaragua, which was decided by the ICC. FRYVRS USA CONTRAS TEST REQUIREMENT: WHETHER OR NOT EXISTS: - EFFECTIVE COMMAND - EFFECTIVE CONTROL Co-ordination Financial dependency ARE NOT SUFFICIENT !! Same objectives
The Accused’s Defence Tadic claimed (under solemn decleration) - he was somewhere else at the time of the alleged acts - he had never been to Omarska or Keraterm camps - he never participated in cleansing in Kozarac - he had been to Trnopolje on five occasions but was never inside the camp he lived in Banja Luka with his family between 23 May and 15 June 1992
The Trial Chamber & the Defence Count 1 persecution Collection, forced transfer of civilians, detention, beatings, killing… Assertion that he was not in Kozarac is not acceptable as the witnesses only stated that they did not see him while they were there
Counts 6, 7, 10, and 11 persecuted for killing, beatings and sexual mutilation Grievious acts of violence, beatings… The accused relies on his defense of alibi only (whereabouts cannot be verified between 15 June to 18 June 1992)
Counts 13, 14, 16, 17, 22, 23 persecuted for cruel treatment and inhumane acts Beatings, violence, abuse.. 13-14: no specific alibi (8,9,10 July 1992) 16-17: no specific alibi (27 June 1992) 22-23: no specific alibi (7 or 8 July)
The Sentence Tadić defence cannot be accepted: untruthful as to his whereabouts no evidence of witnesses Prosecution evidence accepted: the accused presented at the scene the accused participated in the alleged offences The accused IS GUILTY, thus charged with Article 3 and Article 5 Violation of: General Principle of International Law - Customary Law - Crimes against Humanity Tadić has individual criminal responsibility under international law
Separate and dissenting opinion Judge McDonald Found to the contrary All times relevant to the Indictment, the armed conflict in Opristina Prijedor was international in character, that the victims were protected persons and that Article 2 was therefore applicable
Appeals Chamber of 1999 After the judgment of 1997 both Duško Tadic (“Defense” or “Appellant”) and the Prosecutor (“Prosecution” or “Cross-Appellant”) appeal against separate aspects of the Judgment. Main Request: –Addition of 80 new witnesses was made under Rule 115 of the Rules of Procedure and Evidence of the International Tribunal.
1 st Ground of Appeal APPELLANT Trial was prejudiced as there was no "equality of arms" –Refer to Art. 20 (1); JUDGEMENT The Trial was fair; Holdings The Defence had failed to establish that it would have been in the interests of justice to admit additional evidence; The appeals chamber holds against appellant’s contention that his right to a fair trial was prejudiced. 2 nd Ground of Appeal: The right to a fair Trial was dismissed by the Court.
3 rd Ground of Appeal APPELLANT Trial Chamber erred when it was satisfied beyond reasonable doubt that the Appellant was guilty of the murders; JUDGEMENT Margin of deference: Trial -Appeals Chamber; Unreasonableness Criterion; Holdings: The Appellant has failed to show that Nihad Seferovic’s reliability as a witness is suspect, or that his testimony was inherently implausible; The Appeals Chamber sees no reason to overturn the finding.
1 st Ground of Cross-Appeal PROSECUTION The victims of the acts enjoy protection under the Geneva Convention: –Effective Control Test; –International nature of the conflict; –Status of the Victims. Refer to Art. 2 and Art. 4(1) of Geneva Convention. JUDGEMENT International Conflict: financial dependency and coordination; Protected persons: Bosnian Serb forces acted as de facto organs of another State, namely, the FRY. Holdings: The Appeals Chamber accordingly finds that the Appellant was guilty on Counts 8, 9, 12, 15, 21 and 32
2 nd Ground of Cross-Appeal PROSECUTION It can be satisfied beyond reasonable doubt that the accused played a part in the killing of the five men from the village of Jaskici. Refer to Article 7(1) of the Statute and the Notion of Common Purpose: –A plurality of persons –The existence of a common plan, design or purpose –Participation of the accused in the common design; JUDGEMENT The Appellant participated in the killings of the five men in Jaskici; Holdings: In light of the Appeals Chamber’s finding that Article 2 of the Statute is applicable, the Appellant is found guilty on Count 29, 30, 31.
3 rd Ground of Cross-Appeal PROSECUTION Intentionality, knowledge of the context, and impersonal motivations are not always components of a crime against humanity. JUDGEMENT Crimes against Humanity: –related to the attack on a civilian population –accused knew that his crimes were related; Holdings Personal motives for committing an act are not a prerequisite necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute.
4 th Ground of Cross-Appeal PROSECUTION Discriminatory intent is not a necessary element of all crimes against humanity; Refer to Article 5 of the Statute of the International Tribunal. JUDGEMENT Art. 5: not all crimes against humanity must be perpetrated with a discriminatory intent; Holdings Discriminatory intent is an indispensable legal ingredient of the offence only with regard to those crimes for which this is expressly required, that is, for Art. 5 (h), concerning various types of persecution.
5 th Ground of Cross-Appeal PROSECUTION Defense Witness Statements should have been allowed. JUDGEMENT Chamber Discretion: no blanket right for the Prosecution to see the witness statement of a Defence witness; Holdings A Trial Chamber may order, depending on the circumstances of the case, the disclosure of Defence witness statements after examination in chief of the witness.