Tadic

Tadić Case
Susan Lamb
Content type: Encyclopedia entries

Product: Max Planck Encyclopedias of International Law
[MPIL]
Module: Max Planck Encyclopedia of Public International
Law [MPEPIL]
Article last updated: April 2009
Subject(s):
Armed conflict, international — Geneva Conventions 1949 — Crimes against humanity — Cumulative
convictions — Individual criminal responsibility — Command responsibility — Murder
Published under the auspices of the Max Planck Institute for Comparative Public Law and International
Law under the direction of Professor Anne Peters (2021–) and Professor Rüdiger Wolfrum (2004–2020).
From: Oxford Public International Law (http://opil.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved.
Subscriber: Eotvos Lorand University; date: 09 May 2023
A. Introduction and Overview
1 Duško Tadić, a Bosnian Serb born in 1955, was charged with numerous offences
committed during 1992 at the Omarska, Keraterm, and Trnopolje camps, and other
locations in the Prijedor municipality in → Bosnia-Herzegovina. The original indictment,
which contained 132 counts of grave breaches of the → Geneva Conventions I–IV (1949),
violations of the laws and customs of war, and crimes against humanity, was confirmed on
13 February 1995 and subsequently twice amended. Tadić was arrested in the Federal
Republic of Germany in February 1994, and transferred by the German authorities to The
Hague on 24 April 1995 following a request from the → International Criminal Tribunal for
the Former Yugoslavia (ICTY) for a deferral of the national proceedings against him. The
trial commenced on 7 May 1996, and judgment of first instance was rendered on 7 May
1997 (Prosecutor v Tadić[Opinion and Judgment] [7 May 1997]; [‘Trial Judgment’].
2 The first case to be tried by the ICTY, the Tadić Case is notable for having adjudicated a
preliminary challenge to the legality of the establishment of the ICTY as an enforcement
measure under Chapter VII UN Charter. The resultant Appeals Chamber decision also
resolved many early controversies regarding the scope of various offences punishable under
the ICTY Statute (Prosecutor v Tadić [Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction] [2 October 1995]; [‘Interlocutory Appeal Decision’]). A significant
jurisprudential legacy of the Appeals Chamber’s judgment on the merits is its re-evaluation,
for the purposes of → international criminal law, of the threshold for determining when an
internal armed conflict becomes internationalized due to external support (see also
→ Armed Conflict, International; → Armed Conflict, Non-International). This judgment also
contains the first elucidation of joint criminal enterprise in the jurisprudence of the
international criminal tribunals (Prosecutor v Tadić [Judgment] [15 July 1999]; ‘Appeal
Judgement’).
B. Interlocutory Proceedings

1. Legality of the Establishment of the ICTY
3 The ICTY was established by the UN Security Council (→ United Nations, Security
Council) as an enforcement measure under Chapter VII UN Charter (UNSC Res 688 [1991]
[5 April 1991] SCOR 46th Year 31). The establishment of an international criminal tribunal
in this manner was unprecedented, and the ICTY was initially confronted with a motion
challenging the lawfulness of its creation. After finding that the validity of the ICTY’s
establishment was a justiciable issue on grounds that a judicial organ’s jurisdiction to
determine its own jurisdiction, or compétence de la compétence, was a necessary
component of the exercise of a judicial function, the Appeals Chamber evaluated whether
the Security Council, in establishing the ICTY, exceeded the scope of its enforcement
powers (Interlocutory Appeal Decision paras 13–22, 26–27). It concluded that the Security
Council was endowed with the power to create the ICTY as an enforcement measure
following its determination that the conflict in the former Yugoslavia fell within the purview
of Art. 39 UN Charter (→ Yugoslavia, Dissolution of). Under this article, the Security Council
exercises a wide discretion to determine the existence of a threat to the peace, breach of
the peace, or act of aggression. It was unnecessary to closely examine the limits of this
discretion as an armed conflict, or series of armed conflicts, had been taking place in the
former Yugoslavia at the time of the ICTY’s creation. This situation clearly amounted to a
breach of the peace. Characterization of these conflicts was unnecessary, as recent practice
of the Security Council also included cases of civil war or internal strife which had been
classified by the Security Council as a threat to the peace, and dealt with under Chapter VII
UN Charter (Interlocutory Appeal Decision paras 28–30).
4 Once the Security Council determines the preconditions for the operation of Chapter VII
UN Charter to exist, it enjoys a broad, although not unfettered, discretion to choose the
appropriate course of action. The establishment of the ICTY falls squarely within the powers
of the Security Council under Art. 41 UN Charter (measures not involving the use of force;
Interlocutory Appeal Decision paras 31–38). It also falls to the Security Council to evaluate
the suitability of the measures chosen, as well as their potential contribution to the
restoration or maintenance of peace. The legality of such measures is not to be evaluated ex
post facto by their effectiveness in achieving their objective (in the present case, the
restoration of peace in the former Yugoslavia; Interlocutory Appeal Decision paras 39–40).
As the ICTY’s jurisdiction is over universal crimes, which are well-established as serious
breaches of international humanitarian law and transcend the interests of any one State, it
has primacy over national courts (Interlocutory Appeal Decision paras 57–59).
2. Scope of Offences Punishable under the ICTY Statute

(a) Definition of an Armed Conflict
5 The Appeals Chamber also clarified when an armed conflict, a jurisdictional trigger for
most offences under the ICTY Statute, comes into existence. 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’ (Interlocutory Appeal Decision para. 70). Regarding its duration and scope,
the Chamber noted that
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. Until
that moment, international humanitarian law continues to apply in the whole
territory of the warring States or, in the case of internal conflicts, the whole
territory under the control of a party, whether or not actual combat takes place
there. (Interlocutory Appeal Decision para. 70)
Whilst this threshold has been unproblematic in most cases before the ICTY, certain
difficulties were possible in relation to a limited number of situations, such as the
continuing instability in → Kosovo following the cessation of hostilities between the Federal
Republic of Yugoslavia (FRY) and → North Atlantic Treaty Organization (NATO) forces in
1999, and sporadic outbreaks of violence in → Macedonia soon afterwards. In consequence,
the ICTY Prosecutor requested the Security Council to remove the armed conflict
requirement from Art. 5 ICTY Statute (ICTY Office of the Prosecutor Press Release ‘Address
to the Security Council by Carla Del Ponte, Prosecutor of the International Criminal
Tribunals for the Former Yugoslavia and Rwanda’ [24 November 2000] JL/P.I.S./542-e), in
line with its equivalent in the Statute of the → International Criminal Tribunal for Rwanda
(ICTR). To date, the Security Council has not taken up this recommendation.
(b) Article 2 ICTY Statute

6 The Appeals Chamber, in response to a finding by the Trial Chamber that the ICTY had
jurisdiction under Art. 2 ICTY Statute regardless of the nature of the conflict, noted that
Art. 2 ICTY Statute is based on the grave breaches regime of the Geneva Conventions I–IV.
This regime establishes jurisdiction only with respect to breaches of the Geneva
Conventions committed in international armed conflict, and perpetrated against persons or
property regarded as protected by the Geneva Conventions. This interpretation of Art. 2
ICTY Statute is the only one warranted by the text of the Statute and the relevant provisions
of the Geneva Conventions. Art. 2 ICTY Statute therefore only applies to offences
committed within the context of international armed conflicts (Interlocutory Appeal
Decision paras 79–84).
(c) Article 3 ICTY Statute

7 The conflicts in the former Yugoslavia contained both internal and international aspects.
The Security Council intended to empower the ICTY to adjudicate violations of
humanitarian law occurring in either context (→ Humanitarian Law, International). To the
extent possible, the subject-matter jurisdiction of the ICTY should thus be interpreted to
extend to both internal and international armed conflicts (Interlocutory Appeal Decision
paras 77–78). Against this backdrop, the Appeals Chamber defined Art. 3 ICTY Statute as a
general clause covering any serious offence of international humanitarian law not covered
by Arts 2, 4, or 5 ICTY Statute. In other words, Art. 3 ICTY Statute functions as a residual
clause designed to ensure that no serious violation of international humanitarian law lies
outside the ICTY’s jurisdiction (Interlocutory Appeal Decision paras 87–91).
8 The offences enumerated in Art. 3 ICTY Statute are illustrative rather than exhaustive.
An offence not specifically enumerated in Art. 3 ICTY Statute is chargeable under this
provision where the following requirements are met: (i) the violation must constitute an
infringement of a rule of international humanitarian law; (ii) the rule must be customary in
nature or, if it belongs to treaty law, the required conditions must be met; (iii) the violation
must be ‘serious’, that is to say, it must constitute a breach of a rule protecting important
values, and the breach must involve grave consequences for the victim; and (iv) the
violation of the rule must entail, under customary or conventional law, the → individual
criminal responsibility of the person breaching the rule (Interlocutory Appeal Decision para.
94). This has been the portal through which many violations of international humanitarian
law have subsequently been prosecuted before the ICTY, eg attacks on civilians and terror
against the civilian population, and violations of the laws and customs of war described in
Art. 51 (2) → Geneva Conventions Additional Protocol I (1977) and Art 13 (2) → Geneva
Conventions Additional Protocol II (1977) (Prosecutor v Galić [Judgment and Opinion]
ICTY-98-29 [5 December 2003] paras 13–138; → Galić Case).
9 The chamber also clarified that customary international law imposes → individual
criminal responsibility for serious violations of common Art. 3 Geneva Conventions I–IV, as
well as other general rules on the protection of victims of armed conflict. These violations
were also punishable under the Criminal Code of the Socialist Federal Republic of
Yugoslavia (‘SFRY’) and a law implementing the two Additional Protocols to the Geneva
Conventions of 1977, and had been made punishable in the Republic of Bosnia-Herzegovina
by virtue of a decree-law of 11 April 1992. Accordingly, nationals of the former Yugoslavia,
including those of Bosnia-Herzegovina, should have been aware that they were liable to
national criminal prosecution if violating international humanitarian law (Interlocutory
Appeal Decision paras 128–35).
10 The Appeals Chamber also gave close consideration to the important question of the
rules of customary international humanitarian law applicable in non-international armed
conflicts. A number of principles and rules of humanitarian law reflect elementary
considerations of humanity, widely recognized as the mandatory minimum for conduct in
armed conflicts of any kind. These include common Art. 3 Geneva Conventions I–IV, as well
as provisions of Additional Protocol II protecting persons who do not take an active part in
hostilities. Such provisions are declaratory of existing rules, or have since crystallized as
emerging rules of customary international law (Interlocutory Appeal Decision paras 96–
136). This category of rules has been further amplified in subsequent cases (eg Prosecutor v
Kupreškić (Judgment) ICTY-95-16 [14 January 2000] paras 521–36; Prosecutor v
Strugar[Decision on Interlocutory Appeal] ICTY-01-42 [22 November 2002]).
(d) Crimes Against Humanity

11 The Appeals Chamber affirmed that inclusion of crimes against humanity in the ICTY
Statute did not amount to ex post facto law in violation of the principle of nullum crimen
sine lege. In requiring that crimes against humanity be committed in armed conflict, Art. 5
ICTY Statute may have defined this offence more narrowly than necessary under customary
international law (Interlocutory Appeal Decision paras 138–42).
C. Judgment of First Instance

12 On 7 May 1997, Judges McDonald (presiding), Stephen, and Vohrah found Tadić guilty
on 9 counts, and guilty in part of 2 counts of crimes against humanity and violations of the
laws and customs of war. He was acquitted on 20 counts, 11 charges being brought under
Art. 2 ICTY Statute, which was found to be inapplicable.
1. Evidentiary Matters

13 The chamber addressed many elements concerning the obtaining and evaluation of
evidence, such as lack of co-operation with the ICTY by authorities of the territory
controlled by the Bosnian Serb forces (the so-called Republika Srpska), specificity of the
charges, the alleged requirement of corroboration, the credibility of victim witnesses, the
impact of pre-trial media coverage, identification evidence, false testimony, and hearsay
evidence (Trial Judgment para. 529). The chamber also observed that a feature of the
conflict was widespread killings, as well as the indifferent and callous treatment of the
dead. Since these were not times of normalcy, it would be inappropriate to apply rules of
some national systems that require the production of a body as proof of death. However,
there must be evidence to link injuries received to a resulting death (Trial Judgment para.
240).
14 The chamber noted that where access to evidence is threatened by official non-
cooperation, the chamber has many remedies at its disposal, such as permitting testimony
to be given by video-link or in closed session, as well as other protective measures. Such
steps appeared to alleviate difficulties encountered in this case (Trial Judgment paras 530–
31). It also found that the incidents charged, and evidence adduced, by the Prosecution was
sufficiently precise and did not result in any denial of Tadić’s right to a fair trial (Trial
Judgment para. 534). Although a requirement in many national systems, corroboration is
not part of customary international law and is not required before the ICTY (Trial Judgment
para. 539). A victim witness is not per se unreliable merely because he or she was a victim
of a crime, although if proven that a particular witness espoused hatred towards the ethnic
group to which an accused belonged, this may be a ground for doubting the reliability of
that witness (Trial Judgment para. 541). Pre-trial media coverage may be a factor
influencing the reliability of witnesses, and where this aspect is raised in cross-examination,
the chamber will take account of it in assessing a witness’ credibility (Trial Judgment para.
544). The Trial chamber places little weight upon dock identification. However, in this case,
it accepted the use of a photospread procedure in identification, despite defects in the
procedure adopted by the Prosecution (Trial Judgment paras 546–52). The testimony of one
witness, who had been proffered by the authorities of the Republic of Bosnia-Herzegovina,
was found on investigation to be unreliable, leading the prosecution to disclaim reliance
upon that witness’ evidence. This, however, did not lead the chamber to discount the
general reliability of the prosecution evidence beyond that of the impugned witness.
Hearsay evidence is not inadmissible as such before the ICTY, although it is admitted with
caution and assessed for probative value pursuant to Rule 89 Rules of Procedure and
Evidence (Trial Judgment paras 553–56).
15 A previous decision of the Trial Chamber granted full anonymity to witnesses testifying
to sexual mutilation and attacks upon civilians (Prosecutor v Tadić [Decision on the
Prosecutor’s Motion Requesting Protective Measures for Victims and Witnesses] [10 August
1995] paras 53–86). This decision, which has been heavily criticized, has not been followed
in subsequent tribunal jurisprudence. Whilst public non-disclosure of identifying
information, and other similar measures, are justified in the name of witness protection,
other chambers have instead pronounced the withholding of the identity of witnesses from
an accused to be in violation of an accused’s right to examine, or have examined, the
witnesses against him: an integral component of the right to a fair trial guaranteed by Art.
21 (4) ICTY Statute (see, eg, Prosecutor v Blaškić [Decision on the Application of the
Prosecutor dated 17 October 1996 Requesting Protective Measures for Victims and
Witnesses] ICTY-95-14 [5 November 1996]; → Blaškić Case).
2. Grave Breaches

16 The forces of the Yugoslav National Army (‘JNA’, later ‘VJ’) formally withdrew from the
Republic of Bosnia-Herzegovina on 19 May 1992. The Trial Chamber found that the
→ armed forces of the Republika Srpska were thenceforth distinct legal entities from the VJ
and government of the FRY (Trial Judgment para. 584). Based on the general principles of
international law concerning State responsibility outlined by the → International Court of
Justice (ICJ) in the → Military and Paramilitary Activities in and against Nicaragua Case
(Nicaragua v United States of America) ([1986] ICJ Rep 14; ‘Nicaragua Case’), the chamber
found that the armed forces of the Republika Srpska were mere allies, albeit highly
dependent allies, of the government of the FRY. After 19 May 1992, the armed forces of the
Republika Srpska could not be considered as de facto organs or agents of the government
of the FRY. As the victims were thus not, at the relevant time, in the hands of a party to the
conflict of which they were not nationals, Art. 2 ICTY Statute was inapplicable (Trial
Judgment paras 606–8).
3. Crimes against Humanity

17 The required nexus to armed conflict under Art. 5 ICTY Statute does not imply that
crimes against humanity must be committed in the heat of battle. It is sufficient that the
enumerated acts occurred in the course or duration of an armed conflict (Trial Judgment
paras 627–33). However, the acts in question must not be taken for purely personal reasons
unrelated to the armed conflict (Trial Judgment paras 634, 656–59). This latter requirement
was overturned on appeal. Crimes against humanity comprise acts committed as part of a
widespread or systematic attack against a civilian population. Widespreadness, pertaining
to scale or number of victims, and systematicity, connoting a pattern or methodical plan, are
alternatives which exclude isolated or random acts. It is the underlying attack which must
be widespread or systematic, and not the acts of the perpetrator. A single incident could
even qualify as a crime against humanity, provided it is linked to a widespread or systematic
attack against a civilian population (Trial Judgment paras 646–49). There must also be some
kind of preconceived organizational or group plan or policy to commit these acts, although
this need not amount to an official policy of a State (Trial Judgment paras 644, 653–55).
This element is disputed in the case-law, and the Appeals Chamber has since clarified that
crimes against humanity require neither the attack, nor the acts of the accused, to be
supported by any form of policy or plan (Prosecutor v Kunarac [Judgment] ICTY-96-23 [June
2002] paras 98–101).
18 Crimes against humanity must be directed against any civilian population (→ Civilian
Population in Armed Conflict). Whilst the targeted population must have a predominantly
civilian nature, the presence of certain non-civilians in their midst does not change the
character of that population (Trial Judgment paras 636–38). The perpetrator must know of
the context within which his actions were taken, which in turn must be taken on
discriminatory grounds (Trial Judgment para. 644). The finding that discriminatory intent is
a requirement for all crimes against humanity, and not merely for the offence of persecution
under Art. 5 (h) ICTY Statute, was overturned on appeal. Persecution is a serious violation
of a fundamental right on one of the listed discriminatory grounds. It incorporates a broad
category of acts and is not limited to those enumerated in Art. 5 or elsewhere in the
Statute. Subsequent case-law has indicated that non-physical acts of an economic or judicial
nature may also fall within its ambit, provided a gravity threshold is satisfied (see, eg,
Prosecutor v Kordić [Judgment] ICTY-95-14/2 [6 February 2001] paras 195–96, 209–10).
Persecution must be committed with discriminatory intent on the grounds specified (Trial
Judgment paras 697–710). Despite the conjunctive formulation used in Art. 5 (h) ICTY
Statute, the discriminatory grounds listed are alternatives, and it is sufficient if one
discriminatory basis is present (Trial Judgment paras 711–13).
4. Individual Criminal Responsibility

19 Tadić was found to have been a member of the group of armed men who entered the
village of Jaskici on 14 June 1992 and violently beat five men. Although these men were
found dead later that day, the chamber was not satisfied beyond a reasonable doubt that
Tadić played any part in their killing (Trial Judgment paras 373–74).
D. Appeal
20 Both the prosecutor and Tadić appealed the Trial Judgment, with the latter also
appealing the Sentencing Judgment (Prosecutor v Tadić [Sentencing Judgment] [14 July
1997]). Tadić alleged: (1) that his right to a fair trial was prejudiced as there was no
equality of arms between the prosecution and the defence, and (2) that the chamber erred
in convicting him of two specific murders. The prosecution alleged that the chamber erred
in finding (1) that the grave breaches regime under Art. 2 ICTY Statute to be inapplicable;
(2) that the chamber could not, on the evidence before it, be satisfied beyond reasonable
doubt that Tadić played any part in the killing of the five men from the village of Jaskici; (3)
that conviction for crimes against humanity required proof that the acts in question were
not carried out for purely personal reasons unrelated to the armed conflict, and (4) that
discriminatory intent is an ingredient of all crimes against humanity (Appeal Judgment
paras 20–25). A fifth ground of appeal impugned an earlier Trial Chamber decision denying
a prosecution motion for production of defence witness statements. The Appeals Chamber
did not disturb that decision or impose a general duty upon the defence to disclose witness
statements, but observed that in some circumstances, a Trial Chamber has the power to
order the disclosure of defence witness statements after examination-in-chief of the witness
(Appeal Judgment paras 315–26).
21 In dismissing both Tadić’s appeal grounds, the Appeals Chamber concluded that
equality of arms obligates a judicial body to ensure that neither party is put at a
disadvantage when presenting its case. It does not extend to conditions outside the control
of a court which prevent a party from securing the attendance of certain witnesses.
Although alleging that the lack of official co-operation in the Republika Srpska frustrated
his right to a fair trial, Tadić failed to show that he was denied a reasonable opportunity to
present his case. In fact, the chamber responded to numerous requests for assistance by
granting several witness protection and other measures to assist the preparation and
conduct of the defence case. Where a fair trial is impossible because key witnesses are
prevented from appearing, the defence, once exhausting other remedies, also has the
option of requesting a stay of proceedings (Interlocutory Appeal Decision paras 43–57; see
also → Fair Trial, Right to, International Protection). Although conviction for the two
murders in question was based upon the testimony of a single witness, corroboration is not
required by the ICTY Statute or the Rules of Procedure and Evidence. This witness was not
considered unreliable merely because he was introduced to the prosecution by the Bosnian
government. Even though another witness from the same source had been found to be
untruthful at trial and withdrawn by the prosecution, it was not unreasonable for the Trial
Chamber to have relied on the witness’ evidence. It was not demonstrated that his
testimony was inherently implausible or incapable of belief (Appeal Judgment paras 64–67).
22 In allowing the prosecution appeal, the Appeals Chamber noted that Art. 2 ICTY Statute
required proof that the offence was committed during an international armed conflict, and
against persons or property protected by any of the four Geneva Conventions. An armed
conflict is international if it takes place (a) between two or more States or (b) in case of an
internal armed conflict breaking out on the territory of a State, if another State intervenes
in that conflict through its troops, or alternatively if some of the participants in the internal
armed conflict act on behalf of that other State (Appeal Judgment para. 84). The Trial
Chamber apparently considered that there was sufficient evidence to conclude that the
conflict in the Republika Srpska was international in character prior to 19 May 1992, but
that the conflict became internal in nature after that date. On appeal, the prosecution
contended that the conflict was at all times an international armed conflict between two
States, namely Bosnia-Herzegovina on the one hand, and the FRY on the other (Appeal
Judgment paras 85–86).
23 Whether the conflict in the Republika Srpska remained international after 19 May 1992
when the JNA formally withdrew from Bosnia-Herzegovina, turned on the issue of whether
the Bosnian Serb Forces (‘VRS’)—in whose hands the Bosnian victims found themselves—
could still be considered as de jure or de facto organs of a foreign State, namely the FRY.
The Trial Chamber relied, erroneously, upon the effective control test, adumbrated by the
ICJ in the Nicaragua Case. In that case, the ICJ found it necessary for the United States to
have specifically directed the unlawful acts of the so-called contras in order for
responsibility to be attributed to it. However, the criteria under international law for
evaluating acts of individuals not being State officials, but which are performed on behalf of
a certain State, may differ from the extent of State control required in relation to
subordinate armed forces or militia. As the VRS constituted a military organization, the
control of the FRY authorities over these forces required by international law for
considering the armed conflict to be international is instead overall control. Overall control
exists where the party to the conflict has a role in organizing, co-ordinating, or planning the
military actions of the military group, in addition to financing, training, equipping, or
providing operational support to that group. It is unnecessary to show that specific
instructions were given in relation to individual military operations. Where overall control is
established, acts performed by the group or members of it may be regarded as acts of de
facto State organs regardless of any specific instruction by the controlling State concerning
the commission of each of those acts (Appeal Judgment paras 130–45).
24 The Appeals Chamber found that the VJ did exercise the required degree of control over
the VRS throughout 1992. Rather than overturning the factual findings made by the Trial
Chamber, the Appeals Chamber merely gave them a different legal interpretation. The Trial
Chamber had found that the command structure of the JNA did not change even after it was
renamed and re-designated as the VJ. Despite the JNA’s formal withdrawal from Bosnia-
Herzegovina, VRS soldiers continued to receive their salaries from the government of the
FRY after 19 May 1992. The latter also funded the pensions of retired VJ soldiers who had
been serving with the VRS. It follows that the VRS and VJ did not, after May 1992, comprise
two separate armies in any genuine sense. The Bosnian Serb forces’ re-designation as the
VRS, whilst undertaken to create the appearance of compliance with international demands,
was in fact designed to ensure that a large number of ethnic Serb armed forces were
retained in Bosnia-Herzegovina. The creation of the VRS did not indicate an intention by
Belgrade to relinquish the control held by the FRY and VJ over the VRS, and did not point to
an alteration of military objectives and strategies. As conceded by the Trial Chamber,
elements of the VJ continued to directly intervene in the conflict in Bosnia-Herzegovina
after 19 May 1992, and were fighting with the VRS and providing critical combat support to
the VRS. Much de facto continuity was observable in terms of the ongoing hostilities, and
there seems to have been little factual basis for the Trial Chamber’s finding that by 19 May
1992, the FRY and VJ had lost control over the VRS. Taken together, these factors suggest
that the relationship between the VJ and VRS could not be characterized as mere co-
ordination. Instead, between 1992 and 1995, overall political and military authority over the
Republika Srpska was held by the FRY—control in this context including participation in the
planning and supervision of ongoing military operations. Even after 19 May 1992, the
armed conflict in Bosnia-Herzegovina between the Bosnian Serbs and the central
authorities of Bosnia-Herzegovina must therefore be classified as an international armed
conflict (Appeal Judgment paras 146–62).
25 Art. 4 (1) Geneva Convention IV defines → protected persons as those ‘in the hands of a
Party to the conflict or Occupying Power of which they are not nationals’. Geneva
Convention IV intends to protect civilians, in enemy territory, occupied territory, or combat
zones, who do not have the nationality of the belligerent in whose hands they find
themselves, or who are stateless, as well as those civilians in occupied territory who, while
having the nationality of the Party to the conflict in whose hands they find themselves, no
longer enjoy its diplomatic protection. This approach, which is based more upon the
substance of relations rather than on formal bonds, is best suited to many present-day
armed conflicts, which are inter-ethnic in character and where ethnicity rather than
nationality may become the ground for allegiance. Under such conditions, the requirement
of nationality is inadequate to define protected persons. In this case, the Bosnian Serbs,
including Tadić, arguably had the same nationality as the victims, ie that of Bosnia-
Herzegovina. However, even if the perpetrators and the victims shared the same nationality,
the VRS acted as a de facto organ of another State, namely, the FRY. The victims did not
owe allegiance to, and did not receive the diplomatic protection of, the State on whose
behalf the VRS fought—the FRY. The victims were therefore protected persons as they
found themselves in the hands of armed forces of a State of which they were not nationals
(Appeal Judgment paras 164–70).
26 In subsequent cases, the same tests regarding both the internationality of armed
conflict and protected person status, have also been applied in relation to the involvement
of the Republic of → Croatia in the armed conflict in the Bosnian Croat-controlled areas of
the Republic of Bosnia-Herzegovina (eg Prosecutor v Kordić [Judgment] ICTY-95-14/2 [17
December 2004] paras 295–378).
27 According to the Appeals Chamber, the Trial Chamber also erred in deciding that it
could not, on the evidence before it, be satisfied beyond reasonable doubt that the accused
played any part of the killing of the five men from the village of Jaskici (Appeal Judgment
para. 183). It is generally recognized under both national and international criminal law
that a person who knowingly participates in criminal activity with others will be liable for
all illegal acts that are natural and probable consequences of that common design. Although
Art. 7 (1) ICTY Statute principally covers the physical perpetration of a crime by an
offender, commission of a crime under the Statute might also occur through participation in
the realization of a common design or purpose (Appeal Judgment paras 186–88).
28 The notion of common design has been applied to three categories of cases. First, in
cases of co-perpetration, all participants in the common design possess the same criminal
intent to commit a crime, with one or more of them actually perpetrating the crime, with
intent (Appeal Judgment paras 196–201). Secondly, in the so-called ‘concentration camp’
cases, the requisite mens rea comprises knowledge of the nature of the system of ill-
treatment and intent to further the common design of ill-treatment (Appeal Judgment paras
202–3). In the third category of cases, the notion of common purpose is appropriately
applied only where there exists (i) the intention to take part in a joint criminal enterprise
and to further the criminal purposes of that enterprise; and (ii) the foreseeability of the
possible commission by other members of the group of offences that do not constitute the
object of the common criminal purpose. Although not intending to bring about a certain
result, the accused must have been aware that the actions of the group were most likely to
lead to that result, and must have willingly taken that risk. In other words, the so-called
dolus eventualis is required (Appeal Judgment paras 204–20).
29 The objective elements (actus reus) of this mode of participation in relation to the
crimes under the Statute in each of the three categories of cases are as follows: (i) a
plurality of persons; (ii) the existence of a common plan, design, or purpose which amounts
to or involves the commission of a crime provided for in the Statute; and (iii) participation
of the accused in the common design involving the perpetration of one of the crimes
provided for in the Statute. By contrast, the mens rea element differs according to the
category of common design under consideration (Appeal Judgment paras 227–28). These
elements have been further developed in several subsequent ICTY cases (eg Prosecutor v
Milutinović [Decision on Dragoljub Ojdanic’s Motion Challenging Jurisdiction – Joint
Criminal Enterprise] ICTY-99-37 [21 May 2003]; Prosecutor v Stakić[Judgment] ICTY-97-24
[22 March 2006] paras 58–104; and Prosecutor v Brđanin[Judgment] ICTY-99-36 [3 April
2007], paras 389–432).
30 A central aspect of the attack on Jaskici in which Tadić participated was a policy to rid
the region of its non-Serb population in order to achieve the creation of a so-called Greater
Serbia. Tadić actively took part in this attack, rounding up and severely beating some of the
men from Jaskici. The only possible inference to be drawn is that Tadić had the intention to
further the criminal purpose of ridding the Prijedor region of its non-Serb population. The
killing of the five victims was entirely foreseeable as a natural and probable consequence of
this common aim and of the attack on the village of Jaskici. Tadić was aware that the actions
of the group of which he was a member were likely to lead to such killings, but nevertheless
willingly took that risk. Regardless of which member or members of the Serb forces actually
killed the five victims, Tadić should therefore have been convicted of these killings under
Art. 7 (1) ICTY Statute (Appeal Judgment paras 230–33).
31 The Appeals Chamber also agreed that the Trial Chamber erred in requiring, as a
substantive element of mens rea, proof of an accused’s motives, in addition to his intent to
commit the crime and knowledge of the context into which the crime fits. The Trial
Chamber appeared to conflate the commission of an act for purely personal motives and the
notion that the act must not be unrelated to the armed conflict. These two concepts, neither
of which are prerequisites for conviction under Art. 5 ICTY Statute, are in any case not co-
extensive: the discernment of personal motivations within the commission of an act does not
necessarily imply that the required nexus with the underlying attack on a civilian population
is inevitably lacking. Motive is generally irrelevant in criminal law, although it may be
germane to the sentencing stage in mitigation or aggravation of sentence. There is
accordingly no requirement under Art. 5 ICTY Statute that an act must not have been
carried out for the purely personal motives of the perpetrator (Appeal Judgment paras 247–
72). Finally, the Trial Chamber erred in finding that all crimes against humanity required a
discriminatory intent. Such intent, far from being a general threshold condition for all
crimes against humanity, is an indispensable legal ingredient only of the crime of
persecution under Art. 5 (h) ICTY Statute (Appeal Judgment paras 281–305).
E. Contempt Proceedings

32 In the course of the appeal, the Appeals Chamber initiated proceedings against Milan
Vujin, former lead counsel for Tadić, for contempt of the tribunal. These were the first such
proceedings before the ICTY pursuant to Rule 77 Rules of Procedure and Evidence. The
Appeals Chamber, ruling in the first instance, found Vujin guilty of contempt in relation to
his conduct toward the Appeals Chamber and certain witnesses, fined him Dfl 15,000, and
directed the Registrar to consider striking him off the list of assigned counsel maintained by
the registry (Prosecutor v Tadić [Judgment on Allegations of Contempt against Prior
Counsel, Milan Vujin] [31 January 2000]). This decision was affirmed by a differently-
constituted Appeals Chamber sitting on appeal (Prosecutor v Tadić[Appeal Judgment on
Allegations of Contempt against Prior Counsel, Milan Vujin] [27 February 2001]).
F. Sentence
33 In separate sentencing proceedings following the Trial Judgment, the Trial Chamber
sentenced Tadić to several concurrent sentences ranging from 6–20 years’ imprisonment.
The Chamber recommended that his sentence should not be commuted or otherwise
reduced to a prison term of less than ten years from the date of the Appeal Judgment or the
final determination of any appeal, whichever is the later. Tadić appealed the Sentencing
Judgment. As he was, in consequence of the Appeal Judgment (Merits), convicted of
additional counts, the Appeals Chamber deferred sentencing on the additional counts to a
further sentencing procedure. It also deferred judgment on the appeal of the Sentencing
Judgment until the completion of that subsequent sentencing procedure.
34 The Appeals Chamber remitted sentencing in respect of the additional counts to a
reconstituted Trial Chamber, and on 11 November 1999, that chamber sentenced Tadić to
six concurrent sentences, ranging from 6–25 years’ imprisonment (Prosecutor v Tadić
[Sentencing Judgment] [11 November 1999] [‘Sentencing Judgment of 11 November
1999’]). Mirroring the majority opinion in the Erdemović Appeal Chamber (Prosecutor v
Erdemović [Sentencing Judgment] ICTY-96-22 [5 March 1998] paras 20–27), the majority
differentiated the gravity of war crimes from crimes against humanity, finding that an act
committed as part of a crime against humanity, ie with an awareness that the act formed
part of a widespread or systematic attack on a civilian population, is, all else being equal, a
more serious offence than an ordinary war crime (Sentencing Judgment of 11 November
1999 paras 27–28). Tadić also appealed the Sentencing Judgment of 11 November 1999,
with the Appeals Chamber joining both appeals.
35 In relation to Tadić’s appeal against the Sentencing Judgment, the Appeals Chamber
found no error in the Trial Chamber’s imposition of a 20 year sentence (Prosecutor v Tadić
[Judgment in Sentencing Appeals] [26 January 2000] paras 20–23; ‘Judgment in Sentencing
Appeals’). However, it agreed that the Trial Chamber erred in ordering that the
recommended minimum term take as its starting point the date of the Sentencing Judgment
or final determination of any appeal, whichever is the later (paras 31–32 Judgment in
Sentencing Appeals). This could ensure that in exercising the right to appeal, an accused
could face a heavier penalty: an impermissible fetter upon the exercise of that right by an
accused. The Appeals Chamber also agreed that Tadić was entitled to credit for the time
spent in custody in the Federal Republic of Germany prior to his transfer to the ICTY
(Judgment in Sentencing Appeals paras 37–39).
36 Regarding Tadić’s appeal against the Sentencing Judgment of 11 November 1999, the
chamber found no error in the Trial Chamber’s evaluation of the principle of deterrence
(Judgment in Sentencing Appeals paras 48–50), its treatment of Tadić’s co-operation with
the Prosecutor (Judgment in Sentencing Appeals paras 63–64), or its consideration of the
sentencing practice of the courts of the former Yugoslavia (Judgment in Sentencing Appeals
paras 73–74). Despite the seriousness of his offending, the Appeals Chamber agreed that a
sentence of more than 20 years’ imprisonment was excessive given Tadić’s lowly rank
relative to his superiors, and revised his sentence to 20 years’ imprisonment (Judgment in
Sentencing Appeals paras 55–58). However, the majority agreed that no distinction exists
between the intrinsic gravity of a crime against humanity and a war crime. The authorized
penalties in relation to each are also the same, with the level in any particular case being
fixed by reference to the circumstances of the case (Judgment in Sentencing Appeals para.
69).
G. Overall Evaluation

37 Although Duško Tadić was by no means a high-profile defendant, his case, the first
before the ICTY, is associated with several significant developments in international
criminal and humanitarian law. First, it was seminal in upholding the legitimacy of the
tribunal’s establishment by the Security Council as an enforcement measure adopted under
Chapter VII UN Charter. The Appeals Chamber’s determination of the capacity of an
independent tribunal to review the legality of Security Council acts, where this is incidental
to the determination of its jurisdiction, is a far-reaching decision that ‘strongly supports
those who see the UN Charter not as unblinkered license for police action but as an
emerging constitution of enumerated, limited powers subject to the rule of law’ (Alvarez
249). The Trial and Appeals Chamber’s divergent views on the status of the tribunal vis-à-
vis its parent body, the Security Council, are not altogether coherent, and mirror
unreconciled conflicts between the rights of States and → human rights. They also reflect
the sui generis character of the tribunal which, as a judicial body, must be both fair and
independent, whilst at the same time remaining under the purview of a non-judicial body,
the Security Council.
38 Secondly, the Tadić Case has made an invaluable contribution to the development of
international legal norms concerning, in particular, crimes against humanity. Crimes against
humanity are now clearly enshrined in customary international law. By fleshing out the
contours of these crimes, the Tadić Case ensured that the concept of crimes against
humanity developed significant autonomy. This is in contrast to the situation under the
Nuremberg Charter, where they instead required a linkage to crimes against peace or war
crimes. The Tadić Case similarly clarified several threshold jurisdictional requirements of
war crimes, whilst expanding the scope of the tribunal’s jurisdiction in relation to offences
committed in the course of a non-international armed conflict. The simultaneous broadening
of the scope of both crimes against humanity and war crimes raises a question as to the
exact distinction between them when the civilian population is victimized (Dinstein 393).
39 The majority decision of the Trial Chamber, authorizing the indefinite withholding of the
identity of a witness from the accused and his counsel, prompted a lengthy debate
regarding the appropriate balance to be struck between witness protection and the rights of
the accused among various international criminal law experts. Some have defended this
decision, on the basis of the unique context in which the ICTY operates, and as similar
limitations upon an accused’s rights have been allowed before other tribunals such as the
→ European Court of Human Rights (ECtHR). However, it has been widely criticized as
fatally undermining the right of the accused to examine witnesses brought against him or
her, guaranteed by Art. 21 (4) (e) ICTY Statute. It would be impossible for an accused, or his
or her counsel, to cross-examine an adverse witness effectively without knowing that
witness’s name, background, residence, or whereabouts at the time of the events to which
he or she testified. Other mechanisms are sufficient to protect the legitimate needs of
vulnerable witnesses, including victims of sexual assault, such as in camera proceedings,
devices to avoid confrontation with the accused in court, and careful control of cross-
examination. The focus before the tribunals has since shifted to these and other protective
measures, such as non-disclosure of the witness’s identity to the public and the media,
facial, and voice distortion, and the use of pseudonyms, rather than full anonymity. The
result arrived at in this early Trial Chamber decision is unlikely to reoccur.
40 In addressing the applicability of the grave breaches regime, embodied in Art. 2 ICTY
Statute, to the FRY’s involvement in the conflict in the Republika Srpska, the Appeals
Chamber reinterpreted the pre-existing jurisprudence of the ICJ concerning → State
responsibility. Although the legal issues and factual situation confronting the ICTY in the
Tadić Case differed from those facing the ICJ in the Nicaragua Case, the Tadić Appeals
Chamber’s ‘overall control’ test has been criticized as being contrary to the very logic of
State responsibility and at variance with State and judicial practice (Sassòli 408).
41 The ICJ has subsequently reaffirmed the Nicaragua Case test in finding that acts of the
Republika Srpska, VRS, and paramilitary militia involved in the massacres at Srebrenica
were not attributable to the FRY, on grounds that at the relevant time (July 1995), neither
the Republika Srpska nor the VRS could be regarded as mere instruments through which
the FRY was acting. While the political, military, and logistical relations between the federal
authorities in Belgrade and the authorities in the Republika Srpska undoubtedly remained
powerful, they were not such that the Bosnian Serbs’ political and military organizations
should be equated with organs of the FRY. Nor could it be said, in the specific
circumstances surrounding the events at Srebrenica, that the perpetrators of genocide
were acting on the FRY’s instructions, or under its direction or control (Application of the
Convention on the Prevention and Punishment of the Crime of Genocide [Bosnia and
Herzegovina v Serbia and Montenegro] ICJ [26 February 2007], paras 394, 397, 413–15;
‘Application of Genocide Convention’).
42 The ICJ noted that the ‘overall control’ test adumbrated in the Tadić Appeal Judgment
had the ‘major drawback of broadening the scope of State responsibility well below the
fundamental principle governing the law of international responsibility: a State is
responsible only for its own conduct; that is to say the conduct of persons acting, on
whatever basis, on its behalf. The “overall control” test … stretches too far, almost to
breaking point, the connection which must exist between the conduct of a State’s organs
and its international responsibility’ (Application of Genocide Convention para. 406).
However, a dissenting opinion in the same case posited that the Nicaragua Case was not
suitable to questions of State responsibility for international crimes committed with a
common purpose, in relation to which the ‘overall control’ test for attribution established in
the Tadić Case was more apposite (Application of Genocide Convention [Dissenting Opinion
of Vice-President Al-Khasawneh] paras 36–39). Accordingly, a uniform approach to the
question of attribution has yet to emerge in general international law. Nor has the ICJ found
it necessary to require that the same test be adopted in relation to both the determination
of the internationality of armed conflict for the purposes of international criminal law (the
situation confronting the ICTY), and State responsibility for a specific act committed in the
course of such a conflict (the issue before the ICJ) (Application of Genocide Convention
paras 402–5).
43 Finally, the Tadić Appeal Judgment’s findings on joint criminal enterprise (‘JCE’) have
provided fertile terrain for subsequent ICTY decisions evaluating individual criminal
responsibility in relation to collective criminality. A number of scholars have criticized the
Tadić Appeals Chamber’s finding that JCE existed as a mode of liability under customary
international law, due to its lack of a statutory basis, and as the authorities cited provide
weak support for the doctrine of JCE as elaborated by the Appeals Chamber. The case-law
cited in support of JCE III, the so-called ‘extended’ category, is the most controversial, and
this variant of JCE has attracted particular criticism from scholars. Disagreements
regarding JCE’s application have also been manifest in the case-law of the tribunals.
44 The controversies surrounding the doctrine of JCE centre upon uncertainty regarding
its legal elements, its conceptual categorization, and its impact upon the rights of the
accused. A recurring criticism is that it lacks precise definitions which clearly delineate the
scope of individual criminal responsibility. Its potentially expansive scope stems from a
number of ambiguities relating to the nature of the common plan or purpose agreed to, and
the relationship between this common plan or purpose and the crimes perpetrated pursuant
to it. Considerable prosecutorial discretion exists to allege joint criminal enterprises of
enormous scope. This may be problematic, as the more broadly an enterprise is defined the
more likely a particular act may be seen to fall within its ambit. The threshold level of
participation, in terms of the required minimum contribution to a JCE sufficient to place an
individual within the criminal enterprise, is also relatively undefined in the case-law. The
looseness of this doctrine has caused some commentators to fear that JCE is dangerously
close to the notion of guilt by association (eg Danner and Martinez 110–20).
45 In more recent cases, the ICTY Appeals Chamber has sought to respond to these
concerns and to clarify the elements of JCE (see, eg, Prosecutor v Stakić [Judgment]
IT-97-24-A [22 March 2006], paras 58–104; Prosecutor v Brđanin [Judgment] IT-99-36-A [3
April 2007] paras 389–432). Although a consensus appears to have emerged in the Appeals
Chamber as to how JCE should be deployed, a number of questions remain regarding its
proper scope. In particular, the mens rea requirement of the extended variant of JCE in
relation to crimes of specific intent remains undeveloped. Convicting persons for specific
intent crimes on the basis of mere foresight risks ‘[c]onflating the third variant of [JCE] and
the crime of genocide [and] would result in the dolus specialis being so watered down that
it is extinguished’ (Prosecutor v Stakić [Judgment] ICTY-97-24 [31 July 2003] para. 530).
This lead the Stakić Trial Chamber to conclude that ‘the notions of “escalation” to genocide,
or genocide as a “natural and foreseeable consequence” of an enterprise not aimed
specifically at genocide are not compatible with the definition of genocide under Article 4
(3) (a)’ (ibid). This element is not directly addressed in the Stakić Appeals Judgment, which
upheld responsibility pursuant to the third category of JCE only for crimes other than
genocide and persecution, although the Appeals Chamber expressed no limitation in the
application of the extended variant of JCE to crimes of specific intent (Prosecutor v Stakić
[Judgment] ICTY-97-24 [31 July 2003] paras 65, 104).
Select Bibliography
JE Alvarez ‘Nuremberg Revisited: The Tadić Case’ (1996) 7 EJIL 245–64.
C Greenwood ‘International Humanitarian Law and the Tadić Case’ (1996) 7 EJIL
265–83.
CM Chinkin ‘Due Process and Witness Anonymity’ (1997) 91 AJIL 75–9.
M Leigh ‘Witness Anonymity is Inconsistent with Due Process’ (1997) 91 AJIL 80–3.
MP Scharf ‘The Prosecutor v Dusko Tadic: An Appraisal of the First International War
Crimes Trial Since Nuremberg’ (1997) 60 AlbLRev 861–82.
C Greenwood ‘The Development of International Humanitarian Law by the
International Criminal Tribunal for the Former Yugoslavia’ (1998) 2 MaxPlanckUNYB
97–140.
T Meron ‘Classification of Armed Conflict in the Former Yugoslavia: Nicaragua’s
Fallout’ (1998) 92 AJIL 236–42.
WJ Fenrick ‘The Application of the Geneva Conventions by the International Criminal
Tribunal for the former Yugoslavia’ (1999) 834 IRRC 317–29.
Y Dinstein ‘Crimes Against Humanity after Tadić’ (2000) 13 LJIL 373–93.
M Sassòli and LM Olson ‘The Judgment of the ICTY Appeals Chamber on the Merits in
the Tadic Case: New Horizons for International Humanitarian and Criminal
Law?’ (2000) 839 IRRC 733–69.
M Bothe ‘War Crimes’, in A Cassese, P Gaeta, and JRWD Jones (eds) The Rome Statute
of the International Criminal Court: A Commentary vol 1 (OUP Oxford 2002) 379–426.
A Cassese ‘Crimes Against Humanity’, in A Cassese, P Gaeta, and JRWD Jones
(eds)The Rome Statute of the International Criminal Court: A Commentary vol 1 (OUP
Oxford 2002) 353–78.
M Sassòli ‘State Responsibility for Violations of International Humanitarian
Law’ (2002) 846 IRRC 401–34.
AM Danner and JS Martinez ‘Guilty Associations: Joint Criminal Enterprise, Command
Responsibility, and the Development of International Criminal Law’ (2005) 93 CalLRev
75–170.
G Mettraux, International Crimes and the Ad Hoc Tribunals (OUP Oxford 2005).
W Schabas, The UN International Criminal Tribunals: The Former Yugoslavia, Rwanda
and Sierra Leone (CUP Cambridge 2006).
Select Documents
Criminal Code of the Socialist Federal Republic of Yugoslavia.
Prosecutor v Tadić (Decision on the Defence Motion for Interlocutory Appeal on
Jurisdiction) ICTY-94-1 (2 October 1995).
Prosecutor v Tadić (Decision on the Prosecutor’s Motion Requesting Protective
Measures for Victims and Witnesses) ICTY-94-1 (10 August 1995).
Prosecutor v Tadić(Opinion and Judgment) ICTY-94-1 (7 May 1997).
Prosecutor v Tadić (Judgment) ICTY-94-1 (15 July 1999).
Prosecutor v Tadić (Sentencing Judgment) ICTY-94-1 (11 November 1999).
Prosecutor v Tadić (Judgment on Allegations of Contempt against Prior Counsel,
Milan Vujin) ICTY-94-1 (31 January 2000).
Prosecutor v Tadić (Judgment in Sentencing Appeals) ICTY-94-1 [26 January 2000].
Prosecutor v Tadić (Appeal Judgment on Allegations of Contempt against Prior
Counsel, Milan Vujin) ICTY-94-1 (27 February 2001).
‘Statute of the International Tribunal for the Former Yugoslavia’ UNSC Res 827
(1993) (25 May 1993) SCOR 48th Year 29.

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Tadić Case

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B. Interlocutory Proceedings

2. Scope of Offences Punishable under the ICTY Statute

(b) Article 2 ICTY Statute

(c) Article 3 ICTY Statute

(d) Crimes Against Humanity

C. Judgment of First Instance

1. Evidentiary Matters

2. Grave Breaches

3. Crimes against Humanity

4. Individual Criminal Responsibility

E. Contempt Proceedings

G. Overall Evaluation

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