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(Photo provided courtesy of the ICTY)

(Photo provided courtesy of the ICTY)

The Prosecutor v. Duško Tadić

Court International Criminal Tribunal for the former Yugoslavia (ICTY) Appeals Chamber, The Netherlands
Case number IT-94-1-A
Decision title Judgment in Appeal
Decision date 15 July 1999
Parties
  • The Prosecutor
  • Duško Tadić
Categories Crimes against humanity, War crimes
Keywords additional conviction, crimes against humanity, discriminatory intent, Effective control, Geneva Convention, Grave breaches, overall control, personal motives, Prijedor
Links
Other countries involved
  • Bosnia and Herzegovina
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Summary

After the takeover of Prijedor (Bosnia and Herzegovina) and the attack launched against the town of Kozarac (Bosnia and Herzegovina) in 1992, the non-Serb civilians were detained in several prison facilities, where they were beaten, sexually assaulted, tortured, killed and otherwise mistreated. Duško Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and Herzegovina). Trial Chamber II found Duško Tadić guilty of crimes against humanity and war crimes and, in a separate sentencing judgment, sentenced him to 20 years of imprisonment.

The Appeals Chamber denied Duško Tadić’s appeal on all grounds. It did allow, however, the Prosecution’s appeal, reversing the judgment of Trial Chamber II and entering convictions for war crimes and crimes against humanity.

The Appeals Chamber also held that an act carried out for the purely personal motives of the perpetrator can constitute a crime against humanity. Furthermore, Trial Chamber II erred in finding that all crimes against humanity require discriminatory intent. 

The issue of sentencing was referred to a Trial Chamber.

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Procedural history

The amended indictment was filed on 14 December 1995. The trial commenced on 7 May 1996, and Trial Chamber II rendered its Opinion and Judgment on 7 May 1997, finding Tadić guilty of violations of the laws or customs of war and crimes against humanity.

Thereafter, Trial Chamber II rendered its Sentencing Judgment on 14 July 1997, sentencing Tadić to 20 years of imprisonment.

The parties appealed against the Opinion and Judgment of 7 May 1997, and Tadić further filed an appeal against the Sentencing Judgment of 14 July 1997.

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Related developments

On 11 November 1999, Trial Chamber II bis rendered its sentencing judgment on the additional counts, imposing a sentence of 25 years of imprisonment.

On 25 November 1999, Tadić filed a notice of appeal against the Sentencing Judgment of 11 November 1999. Pursuant to his request, the Appeals Chamber ordered that the appeal be joined with the Appeal against the Sentencing Judgment of 14 July 1997.

The Appeals Chamber rendered its judgment on 26 January 2000; it upheld the convictions for war crimes and crimes against humanity, but found that the trial Chamber had erred in the sentencing. Hence, the prison sentence was reduced to twenty years.

On 31 October 2000, Duško Tadić was transferred to Germany to serve his sentence (see ICTY, 'Duško Tadić Transferred to Germany to Serve Prison Sentence', ICTY Press Release, 31 October 2000).

On 18 June 2001, Duško Tadić filed a request for a review of his complete case, in light of the decision on contempt of the Tribunal. The Appeals Chamber dismissed the request on 30 July 2002. On 17 July 2008, Duško Tadić was granted early release.

During the Tadić procedure, contempt hearings were initiated against Milan Vujin, lead counsel for the Defence of Duško Tadić. On 31 January 2000, the Appeals Chamber found Vujin in contempt of the Tribunal and fined him. A subsequent appeal was dismissed by the Appeals Chamber on 27 February 2001 (see ICTY, 'Milan Vujin, former Counsel for Dusko Tadic, Found in Contempt of the Tribunal, and Fined 15,000 Dutch Guilders', ICTY Press Release, 31 January 2000).

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Legally relevant facts

On 30 April 1992, the Serb Democratic Party (SDS) took over control in the town of Prijedor (Bosnia and Herzegovina). On 24 May 1992, the nearby town of Kozarac (Bosnia and Herzegovina) was attacked, resulting in the killing of some 800 civilians, and the removal of non-Serbs from the town. During the attack on Kozarac, non-Serb civilians were beaten, robbed and murdered by the Serb forces. After the takeover of Prijedor and the surrounding areas, the Serb forces detained non-Serb civilians in three major prison camps: the Omarska, Keraterm, and Trnopolje camps (all near Prijedor, Bosnia and Herzegovina). Those who were detained were subjected to beatings, sexual assaults, torture, executions, and psychological abuse. Furthermore, the detainees were held in unhygienic conditions in overcrowded rooms (para. 53 et seq. of the judgment rendered by Trial Chamber II on 7 May 1997). 

Duško Tadić was the President of the Local Board of the Serb Democratic Party in Kozarac (Bosnia and Herzegovina).

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Core legal questions

  • Did Trial Chamber II err in its findings with respect to the convictions of Duško Tadić?
  • Can the Appeals Chamber uphold any of the grounds of the Appellants? 

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Specific legal rules and provisions

  • Articles 2, 5, 20, 21, 25 of the ICTY Statute;
  • Rule 115 of the ICTY Rules of Procedure and Evidence.

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Court's holding and analysis

The Appeals Chamber denied Tadić’s appeal on all grounds.

In its first ground of appeal, the Prosecution argued that Trial Chamber II “erred by relying exclusively upon the “effective control” test derived from the Case concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States) in order to determine the applicability of the grave breach provisions of the relevant Geneva Convention” (para. 73). The Appeals Chamber found that “[t]he “effective control” test propounded by the International Court of Justice as an exclusive and all-embracing test is at variance with international judicial and State practice: such practice has envisaged State responsibility in circumstances where a lower degree of control than that demanded by the Nicaragua test was exercised” (para. 124) introducing a different test of overall control with respect to military or paramilitary groups. Exercising overall control means “not only [the] equipping and financing [of] the group, but also [the] coordinating or helping in the general planning of its military activity.” (para. 131) The Appeals Chamber concluded that “the armed forces of the Republika Srpska were to be regarded as acting under the overall control of and on behalf of the [Federal Republic of Yugoslavia].  Hence, even after 19 May 1992 the armed conflict in Bosnia and Herzegovina between the Bosnian Serbs and the central authorities of Bosnia and Herzegovina must be classified as an international armed conflict” (para. 162). The Appeals Chamber reversed Tadić’s acquittal and found him guilty of grave breaches of the Geneva Conventions. (para. 171)

The Appeals Chamber also held that “[t]he Trial Chamber erred in holding that it could not, on the evidence before it, be satisfied beyond reasonable doubt that the Appellant had any part in the killing of the five men” (para. 233), finding Tadić guilty of additional war crimes and crimes against humanity (paras. 235-237). 

The Appeals Chamber further found that “the requirement that an act must not have been carried out for the purely personal motives of the perpetrator does not form part of the prerequisites necessary for conduct to fall within the definition of a crime against humanity under Article 5 of the Tribunal’s Statute” (para. 272). 

The Appeals Chamber also held that “the Trial Chamber erred in finding that all crimes against humanity require a discriminatory intent.” (para. 305)

The issue of sentencing was referred to a Trial Chamber (p. 144).

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Further analysis

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Instruments cited

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Related cases

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Additional materials