14
PROSECUTOR V. DUSKO TADIC

INTRODUCTION
The main belligerents in the Bosnian War were the forces of the Republic of Bosnia(Bosnian Government Forces) and Herzegovina and those of the self-proclaimed Bosnian Serb and Bosnian Croat entities within Bosnia and Herzegovina,Republika Srpska and Herzeg-Bosnia, who were led and supplied by Serbia and Croatia respectively.
The war came about as a result of the breakup of Yugoslavia. Following the Slovenian and Croatian secessions from the Socialist Federal Republic of Yugoslavia in 1991, the multi-ethnic Socialist Republic of Bosnia and Herzegovina, which was inhabited by Muslim Bosnians(44 percent), Orthodox Serbs (31 percent) and Catholic Croats (17 percent), passed a referendum for independence on 29 February 1992. This was rejected by the political representatives of the Bosnian Serbs, who had boycotted the referendum and established their own republic. Following Bosnia and Herzegovina's declaration of independence (which had gained international recognition), the Bosnian Serbs, supported by the Serbian government of Slobodan Milosevic and the Yugoslav People's Army (JNA), mobilized their forces inside the Republic of Bosnia and Herzegovina in order to secure Serbian territory, then war soon broke out across the country, accompanied by the ethnic cleansing of the Muslim Bosnian and Croat population, especially in eastern Bosnia and throughout the Republika Srpska. The Muslims were the people who were affected by the ethnic cleansing, but it was the Bosnian govt. forces that had an armed conflict with the Bosnian Serbs.

FACTS OF THE CASE:-
The indictment charged Tadic with a list of crimes allegedly committed in the Prijedor region of Bosnia-Herzegovina between 25 May 1992 and early August of the same year. Many of the counts in the indictment concerned events said to have taken place at a camp at Omarska, where large numbers of Bosnian Muslims and Croats were detained by Serb forces. The charges dealt with accusations of rape, unlawful killing, torture and cruel treatment. In respect of each of the alleged incidents the indictment charged the defendant under Articles 2, 3 and 5 of the Statute of the Tribunal. Thus, the indictment, which concerned an accusation that the defendant had raped a woman prisoner at the Omarska camp, charged him:
(a) with
(i) a grave breach of willfully causing great suffering, under Article 2(c) of the Statute or, in the alternative,
(ii) cruel treatment under Article 3 of the Statute; and
(b) With rape, as a crime against humanity under Article 5(g) of the Statute.
ISSUES INVOLVED
The decision concerned a challenge by the defendant to the jurisdiction of the Tribunal on three grounds:
(a) The Tribunal had not been lawfully established;
(b) That the primacy over national courts which Security Council resolution purported to give to the Tribunal was unlawful; and
(c) That the Tribunal lacked subject-matter jurisdiction in respect of the charges laid against the defendant.
ARGUMENTS AND DECISIONS:- 1. The appeals chamber held that the establishment of the ICTY fell squarely within the power of the Security Council under article- 41 of the United Nations charter and that ICTY had been ‘lawfully established’. The Appeals Chambers determined that there had been a threat to the peace in the former Yugoslavia justifying the Security Council’s invocation of chapter- VII served as an appropriate legal basis for establishing an international criminal tribunal. 2. The defendant maintained that the Tribunal lacked subject-matter jurisdiction in respect of all these charges, on the ground that none of the acts alleged in the indictment had taken place in the course of an international armed conflict. According to the Prosecutor, the Security Council had treated the entire conflict in the former Yugoslavia as an international armed conflict, as was shown by its calls to the parties to observe the Geneva Conventions and its references, in a number of resolutions, to grave breaches of those Conventions. In the alternative, the Prosecutor submitted that the Tribunal's jurisdiction regarding war crimes and crimes against humanity was not confined to acts taking place in an international armed conflict. The laws and customs of war referred to in Article-3 of the Statute had to be taken to include all the customary international law of armed conflict, including that part which was applicable in non-international armed conflicts. The Trial Chamber held that the existence of an international armed conflict was not a requirement for the exercise of jurisdiction under Article 2, 3 or 5 of the Statute. In view of its decision regarding the scope of application of Articles 2, 3 and 5, the Trial Chamber considered it unnecessary to determine the character of the armed conflict in Bosnia-Herzegovina, although it noted that there were 'clear indications' in the material before it that the conflict was an international one.
On appeal, the Appeals Chamber upheld the dismissal of the defendant's challenge to the jurisdiction of the Tribunal but did so on grounds which differed in significant respects from those of the Trial Chamber. The defendant's submission to the Trial Chamber was that there had been no international armed conflict, on appeal he sought to argue that there had been no armed conflict of any kind in Prijedor at the relevant time. Instead, he maintained that the Serb inhabitants had assumed authority in the region without active resistance on the part of the Muslim and Croat inhabitants, so that, whatever the position may have been in other parts of Bosnia-Herzegovina, there had been neither an internal nor an international armed conflict in Prijedor. This argument assumes that an armed conflict exists only in those parts of a State (or States) where actual fighting is taking place at any given time. However, as the Appeals Chamber held, there is nothing in the Geneva Conventions or other rules of humanitarian law to justify such an assumption, let alone the conclusion which the defendant apparently sought to draw from it, namely that the conditions of detention of prisoners detained away from the scene of the fighting would not be subject to humanitarian law. On the contrary, many provisions of humanitarian law are expressly intended to apply away from the scene of the fighting or after active hostilities have ceased. Therefore, that the Appeals Chamber held that: “...an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State. International humanitarian law applies from the initiation of such armed conflicts and extends beyond the cessation of hostilities until a general conclusion of peace is reached; or, in the case of internal conflicts, a peaceful settlement is achieved.”
On this basis, the situation in Bosnia-Herzegovina is considered an armed conflict by May 1992 and the acts alleged in the indictment were sufficiently connected to that conflict to be subject to the rules of humanitarian law, irrespective of whether there was any fighting in the Prijedor region itself.
The Appeals Chamber did not, however, accept that the situation in the former Yugoslavia should automatically be regarded as a single armed conflict, which was wholly international in character. Instead, it held that the conflict (or, rather, the conflicts) had both internal and international characteristics.
In particular, the Decision takes as a starting point that: “To the extent that the conflicts had been limited to clashes between the Bosnian Governments forces and Bosnian Serb rebel forces in Bosnia-Herzegovina, as well as between the Croatian Government and Croatian Serb rebel forces in Krajina (Croatia), they had been internal (unless direct involvement of the Federal Republic of Yugoslavia (Serbia and Montenegro) could be proven.”

Unanimously, that the Accused was found GUILTY on 11 counts charging him with persecution and 14 beatings. The Chamber has found the accused "untruthful" as to his whereabouts at the time of the alleged offences and has been satisfied beyond reasonable doubt by the Prosecution's evidence that the accused either was present at the scene of, or did participate into, the alleged offences.
Analysis of the judgment of appeals chamber * The verdict represents the first ever judicial condemnation of the "ethnic cleansing" policy. * As pointed out by the Chamber itself, this judgment is "the first determination of individual guilt or innocence in connection with serious violations of international humanitarian law by an international tribunal (...).The international military tribunals at Nuremberg and Tokyo,..., were multinational in nature, representing only part of the world community". * The Appeals Chamber was right to reject the argument that the Security Council had, in effect, already determined that the totality of the conflicts in the former Yugoslavia were to be treated as international in character. There is no indication in the text of Resolution 827, establishing the Tribunal, in the Statute of the Tribunal, which was annexed to that resolution, or in the Report of the Secretary-General, on which the Security Council acted in adopting that resolution, that the character of the conflict had already been determined. * Secondly, there is nothing intrinsically illogical or novel in characterizing some aspects of a particular set of hostilities as an international armed conflict while others possess an internal character. Conflicts have been treated as having such a dual aspect where a Government is simultaneously engaged in hostilities with a rebel movement and with another State which backs that movement. The International Court of Justice in the Case Concerning Military and Paramilitary Activities in and against Nicaragua stated:
“The conflict between the contras' forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character'. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character, whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts”.

* Thirdly, the complexity of the situation in Bosnia-Herzegovina itself since May 1992 suggests that the conflicts taking place there should not be treated as a single, international armed conflict, but must rather be regarded as possessing both internal and international aspects. Thus, the hostilities between the Bosnian Government forces and troops from Croatia and Serbia/Montenegro were clearly international in character, once Bosnia-Herzegovina had become an independent State. At the other end of the spectrum, it is difficult to see how the hostilities between the Bosnian Government forces and dissident Muslim forces in Bihac can be regarded as anything other than an internal conflict.

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[ 1 ]. http://www.icj-cij.org/docket/files/91/13685.pdf
[ 2 ]. http://www.un.org/icty/kunarac/trialc2/judgement/kun-tj010222e-5.htm#VC
[ 3 ]. http://www.icty.org/sid/7537
[ 4 ]. These Articles define the principal heads of the Tribunal's jurisdiction in the following terms:
Article 2: Grave Breaches of the Geneva Conventions of 1949
Article 3: Violations of the Laws or Customs of War
Article 5: Crimes against Humanity
No charges were brought against Tadic under Article 4 of the Statute, which gives the Tribunal jurisdiction over allegations of genocide.
[ 5 ]. Brief to Support the Motion on the Jurisdiction of the Tribunal (23 June 1995), Section 3 ("Defence Trial Brief).
[ 6 ]. Prosecutor's Response to the Defence's Motions filed on 23 June 1995 (7 July 1995), 47-59.
[ 7 ]. Article 3: Violations of the Laws or Customs of War
The International Tribunal shall have the power to prosecute persons violating the laws or customs of war. Such violations shall include, but not be limited to:
(a) employment of poisonous weapons or other weapons calculated to cause unnecessary suffering;
(b) wanton destruction of cities, towns or villages, or devastation not justified by military necessity;
(c) attack or bombardment, by whatever means, of undefended towns, villages, dwellings or buildings; (d) seizure of, destruction or wilful damage done to institutions dedicated to religion, charity and education, the arts and sciences, historic monuments and works of art and science;
(e) plunder of public or private property.
[ 8 ]. Appeals Chamber Decision, para. 70.
[ 9 ]. Ibid ,para-77
[ 10 ]. Ibid para-72
[ 11 ]. The Arbitration Commission of the International Conference on the Former Yugoslavia fixed the date on which Bosnia-Herzegovina became a State as 6 March 1992, the date on which the result of the referendum on independence was announced; Opinion No. II. 96 ILR 719.